CUNY Law Review Potluck

CUNY Law Review Potluck: February 1, 2016 @ 5:15pm

Next Monday, February 1, 2016 at 5:15 p.m., CUNY Law Review will be having a potluck in the Community Room (3-116).

The event is open to all law review staff members – please join the board and your fellow staff members and find out about new and exciting plans we have in store for the law review this semester. Feel free to bring food, games and other entertainment!

Vol. 18.2

Explore the complete digital version of Volume 18.2.

Public Interest Practitioners Section (PIPS)

When the Invisible Hand Wields a Scalpel: Maternity Care in the Market Economy, by Farah Diaz-Tello, Senior Staff Attorney at National Advocates for Pregnant Women

Working on the Outskirts of Hope: One Independent Legal Services Organization’s Struggle to Survive and Serve Rhode Island’s Low Income Communities, by Geoffrey Schoos, Founder and President of the Rhode Island Center for Law and Public Policy


Toxic Sweatshops: Regulating the Import of Hazardous Electronics, by Allie Robbins, Assistant Dean for Academic Affairs, City University of New York School of Law


Revisiting S.C.P.A. 17-A: Guardianship for People with Intellectual and Developmental Disabilities, A Report of the Mental Health Law Committee and the Disability Law Committee of the New York City Bar Association


 “I Don’t Really Sleep”: Street-Based Sex Work, Public Housing Rights, and Harm Reduction, by Chelsea Breakstone, City University of New York School of Law, J.D. Class of 2015

Toward a Synthesis: Law as Organizing, by Aaron Samsel,  City University of New York School of Law, J.D. Class of 2015

Justice in America: Diverting the Mentally Ill


By Matthew J. D’Emic[1]


It has been a rough year for the criminal justice system in America. Racially charged confrontations in various jurisdictions have caused citizens to question both the substantive and procedural fairness of our justice system. Calls for reform of the grand jury process, court transparency, and other facets of the criminal justice system sound far and wide. Protestations of “no justice, no peace”—an accusation of systemic injustice—echo across the country.[2]

Legal scholars decry the shortcomings of judges and judging. One claims “misjudging is more common, more systematic, and more harmful than the legal system has fully realized.”[3] Yet another presumes “judges generally are prone to error because of . . . informational, cognitive, and attitudinal blinders,” concluding, “I do not think that the vast majority of trial judges are good . . . .”[4]

In fact, no less a personage than presidential candidate Hillary Clinton recently stated in an interview:

I believe we need to end the era of mass incarceration. If you compare arrest records in, you know, in charging crimes, in sentencing for crimes, you compare African-American men to white men, it is as unfortunately clear as it could be, that there is a bias in favor of white men.[5]

So there it is. A bad year for the reputation of the justice system in general and judges in particular. Whether one agrees with it or not (and it is nothing new), or agrees with it in part, judges and the justice system cannot lose the trust of the citizenry without dire consequences. Trust is key to the effectiveness of the third, non-political branch of government.

Against this backdrop of mistrust I would like to present to the reader the history and future of a quiet evolution in the justice system—one which I believe bolsters trust in the justice system: the mental health court.

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The Issue is not the Issue

The Issue Is Not the Issue

Sara AbiBoutros[1]

The use of public space to peacefully assemble is essential to the success of any social movement fighting for social justice. Without a space for people to come together, it would be impossible to engage with one another, to plan, and to make our civil disobedience visible to the public. The convergence of public and private institutions to curtail the use of space to quash free speech is evident through the repression of the Free Speech Movement (“FSM”) in the 1960s and Occupy Wall Street (“OWS”) in 2011. At their core, the FSM and OWS were both protesting the socio-political landscape and the power structure. Both movements used symptoms of this larger issue, such as limiting free speech and the use of public space, to create such tension that society could no longer ignore injustice. Through this approach they were able to gain political concessions; but more importantly, they radicalized previously non-politically active individuals and changed the way people think.

The FSM was able to galvanize support through confrontations with a university’s administration,[2] while OWS attempted to create the world in which it envisioned. Different ideologies of civil disobedience played a part in shaping the movements and the tactics they chose to utilize. Off-shoots of OWS, such as Occupy Sandy and Strike Debt, show that the principles of the movement could be used as a model to achieve tangible successes in multiple arenas.

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The Environmental Crisis of the 2003 Iraq War: A Moral Obligation or a Mandatory Measure Under International Treaties

The Environmental Crisis of the 2003 Iraq War: A Moral Obligation or a Mandatory Measure Under International Treaties

By Ramy A. Ibrahim1

The 2003 Iraq War has left a long-lasting detrimental impact on the lives of Iraqis. Aside from the highly destructive sectarian divide, political instability, and stunted economic development, both the United States and the Iraqi Governments have failed to address the environmental contamination that resulted from the military munitions used during the war.2 This article focuses on the effects of that contamination, the reaction both governmental systems have taken, how these actions constitute violations of various international treaties, and also calls for action.

Studies have linked the highly radioactive environmental contaminates left behind by the war to dramatically increasing rates of cancer, birth defects, and other illnesses—including respiratory and neurological ones—in all affected areas.3 Iraqi women and children continue to live in these hazardous conditions and are constantly exposed to these left-over toxic munitions and carcinogenic waste.4 The failure of the U.S. and Iraqi Governments to take sufficient measures to decontaminate the affected areas, and to provide healthcare services for affected persons constitutes a blatant violation of a number of international treaties, including, but not limited to: the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),5 the Convention on the Rights of Persons with Disabilities (CRPD),6 and the Convention on the Rights of the Child.7

I. Violation of International Treaties

Under these international treaties, the U.S. remains directly responsible for the human rights violations that took place during, or as result of, the Iraq War.8 The Human Rights Committee explained in General Comment 31 on the International Covenant on Civil and Political Rights that “the enjoyment of Covenant Rights is not limited to citizens of States Parties but must also be available to all individuals, regardless of nationality . . . who may find themselves in the territory or subject to the jurisdiction of the State Party.”9 The Committee added further that “[t]his principle also applies to those within the power or effective control of the forces of a State Party acting outside its territory.”10 Additionally, the State Party’s responsibility extends to persons or places beyond the State Party’s control when the State Party was a “causal link” in the chain in the violation and if the State Party had knowledge and foresaw the violation.11 From this, it is evident that both the U.S. and Iraq have violated these treaties and have a responsibility to remedy this issue.

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From Stoop to Storefront: The Fight for Housing Justice in New York City

From Stoop to Storefront: The Fight for Housing Justice in New York City

CUNY Law Review’s latest panel discussion, “From Stoop to Storefront: The Fight for Housing Justice in New York City”, which focused on housing rights and featured leading guest speakers, took place on November 10th and was a great success!

Be on the lookout for more panel events on critical issues to come in the future, hosted by the CUNY Law Review!

E-Discovery in Criminal Defense: Challenges of Pretrial Detainee Access

E-Discovery in Criminal Defense: Challenges of Pretrial Detainee Access

By Emilee A. Sahli 1

I. Introduction

Imagine that you are a criminal defense attorney and your client is being charged with a felony, denied bail, and held in pretrial detention on federal drug charges. It could be years before your client has an opportunity for trial. In the rare event that your client decides to hold out against pressures to accept a plea agreement, your client’s ability to participate in their own defense is extremely limited by the conditions of their confinement. Any reasonable penological explanation for restricting their access to calls or meeting with you to review evidence in the law library and otherwise participate in the investigation process will be constructively unchallengeable in court.

Imagine, instead, that you have another client—one facing various federal charges for fraud and embezzlement—who has been granted, and was able to post bail. This client may also wait years for trial. However, they will not have the same restrictions on their ability to participate in their own defense as your client held in pretrial detention. This client would have the freedom of movement and the time and resources to communicate more openly with you and your staff, to review discovery, and to overall assist in the investigation and discovery review process. This discrepancy in the rights of those detained pretrial and those who are offered and able to post bail is especially stark in complex cases involving large amounts of discovery, often taking the form of electronic discovery.

The original purpose of pretrial detention and the setting of bail was to ensure that the person return to court to face the charges against them. However, pretrial detention has evolved out of concerns for public safety based upon the judge’s assessment of the defendant’s dangerousness. Regardless of the purpose for pretrial detention, this imbalance of opportunity for the accused to participate in their own defense ought to be challenged in order to preserve constitutional due process rights. If our criminal justice system is to preserve any meaning to the presumption of innocence, legal counsel must be aware of the unique challenges faced by their clients that are detained pretrial.

This article gives an introduction to electronic discovery in federal criminal litigation and explores the unique challenges that pretrial detainees face in accessing electronic discovery. The rise of electronic discovery requires that attorneys become aware of the complexities surrounding this form of discovery in order to adequately represent their clients’ interests.

First, the article provides background information as to what electronic discovery is and the current state of pretrial detention in federal criminal cases. Second, the article lays out some of the various challenges in accessing electronic discovery for pretrial detainees. Finally, the article opens a discussion surrounding potential solutions by exploring efforts by the facilities themselves as well as potential legal strategies for litigation over the unique challenges of pretrial detainees in accessing electronic discovery.

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Article: These Parks Are Our Parks

These Parks Are Our Parks

An Examination Of The Privatization Of Public Parks In New York City And The Public Trust Doctrine’s Protections

By Thomas Honan 1


The Great GoogaMooga, advertised as “an amusement park of Food, Drink, & Music” was a music, artisan food, and drink festival in Prospect Park.2 GoogaMooga lasted two days during the summer of 2012 and three days during the summer 2013,3 and demonstrates the negative impact of private use on public space.4 The Prospect Park Alliance, a non-profit organization founded to raise private funds to supplement the financing of Prospect Park,5 and Superfly, a privately owned music festival company, organized GoogaMooga. 6 The festival was strategically placed in Nethermead Meadow, a lovely tree-lined meadow located in the center of the park.7 Nethermead Meadow is traditionally used by the public for dog walking, tossing a football, and gathering with friends for a picnic, the leisure activities one would expect to take place in a park meadow. Over the three-day event, Nethermead Meadows played host to approximately 120,000 people, and accommodated approximately 75 restaurant stands, 65 drink stations, and two stages where 20 bands performed.8 As one Prospect Park local aptly put it, “It’s like bringing a boombox into a library – it doesn’t belong there.”9

The festival was intended as a fund-raising opportunity for the park.10 The idea was that the event would raise sufficient funds to provide a benefit to all the park users.11 Instead, the festival resulted in the destruction of the Nethermead Meadow and prevented the public from its use for a month after it ended.12 Additionally, the festival was promoted as a community event.13 The Great GoogaMooga website explains: “And that’s why The Great GoogaMooga is more than a festival. It’s a community brought together by a shared passion.”14 However, many of the communities surrounding the park were unable to attend because of the high admission cost of $79.50,15 and the Nethermead Meadow prevented non-ticket holders from access by way of a fence.16 The most disturbing aspect of The Great GoogaMooga experience is that in consideration for allowing the park’s use, The Prospect Park Alliance received a mere $75,000.17 Essentially, the festival was intended to provide a substantial benefit to the public and promoted itself as a community event, when in reality the surrounding community lost part of its park for a month.

The GoogaMooga experience illustrates the effects privatization can have on the public’s use of its parks. Public parks are areas of land that are dedicated to be used for the public interest.18 Since the 1970s, there has been a steady trend toward the privatization of public parks in New York City.19 Over the past ten years, new models of privatization have emerged, and, more than ever, the public is in danger of losing out on its use of parks.20 This trend corresponds with a substantial decrease in state and city funding for public parks.21 Since 2008, the City has slashed its overall maintenance and operation of parks budget by 21%.22

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Vol. 18.1 – The Economic Justice Issue

Explore the digital version of  Volume 18.1, the Economic Justice Issue.


Introduction – To Economic Justice Themed Issue.

 Public Interest Practitioners Section (PIPS)

MFY Legal Services, Inc.’s Medical  Legal Partnership with Bellevue Hospital Center: Providing Legal Care to Children with Psychiatric Disabilities, by Aleah Gathings, Staff Attorney at MFY Legal Services, Inc. and on-site attorney at Bellevue Hospital’s Child and Adolescent Clinic


Elevating Substance over Procedure: The Retroactivity of Miller v. Alabama under Teague v. Lane, by Brandon Buskey, Staff attorney, American Civil Liberties Union, Criminal Law Reform Project & Daniel Korobkin, Deputy Legal Director, American Civil Liberties Union of Michigan.

A Founding Failure of Enforcement:  Freedmen, Day Laborers, and the Perils of an Ineffectual State, by Raja Raghunath, Assistant Professor, University of Denver Sturm College of Law.


One Condo, One Vote: The New York BID Act as a Threat to Equal Protection and Democratic Control, by Brett Dolin, J.D. Candidate ’15, City University of New York (CUNY) School of Law.

No Access, No Choice: Foster Care Youth, Abortion, and State Removal of Children, by Kara Sheli Wallis, J.D. Candidate ‘15, City University of New York (CUNY) School of Law.


The Long Crisis: Economic Inequality in New York City, A Conversation between Fahd Ahmed, Inequality in New York City Tom Angotti, Jennifer Jones Austin, Shawn Blumberg, & Robin Steinberg, Moderated by Professor Stephen Loffredo.

Equity & Efficiency: The Role and Practice of Diversity in Legal Scholarship

Four CUNY Law Editors (Violeta Arciniega, Digital Articles Editor; Elizabeth Koo, Editor-in-Chief; Julie Pennington, Managing Articles Editor; and Nabila Taj, Managing Editor) cowrote a blog post for Ms. JD about their experiences trying to expand diversity on law reviews:

Law journals are thought centers of innovative arguments for social change. They are platforms to challenge norms and disseminate bold concepts into the marketplace of ideas to influence courts, inform legislators, and shape public opinion.

This means that diversity initiatives are crucial to the legal profession and to the culture of law school, and law journals specifically, because they work to correct the persistent underrepresentation of the people fighting prejudice and poverty, dealing with the consequences of racially-biased laws, and surviving in a society unwilling to accommodate their needs.

The rest of “Equity & Efficiency: The Role and Practice of Diversity in Legal Scholarship” is available on the Ms. JD Blog.