Idea Bank for New York City’s Chief Public Realm Officer: Imagining a Broad, Equity-Enhancing Role for Creating Access to Public Space

Tara Eisenberg, Althea Lamel, Lindsay Matheos, Carolyn Weldy, and Andrea McArdle

Volume 27.1 (download PDF)

Abstract

By executive order on February 16, 2023, New York City Mayor Eric Adams created the position of the City’s Chief Public Realm Officer to promote a more centralized and coordinated approach to public realm policy, and appointed a chief strategy officer from his own staff, Ya-Ting Liu, to fill this position. This Article argues that the City should view the role of the Public Realm Office expansively and proactively to help achieve meaningful, equity-enhancing progress in stewarding public space. The authors, former students and a faculty member of CUNY School of Law’s Land Use and Community Lawyering seminar, offer a constellation of ideas for consideration. These include opening up and greening vacant spaces, even for temporary use, while simultaneously urging approaches to address the paradox that adding green infrastructure to environmentally degraded areas often imposes the side effects of gentrifying them, elevating land values, drawing in new residents, and driving out the very community members who should have benefited from the initial improvements. The ideas developed here also discuss the benefit of enhancing support—both financial and logistical, including through the donation of public land—for the expansion of community land trusts (“CLTs”) that function outside of the speculative market. Lastly, this idea bank offers proposals for using the public realm to enhance digital equity.

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An Exegesis of the Meaning of Dobbs: Despotism, Servitude, & Forced Birth

Athena D. Mutua

Volume 27.1 (download PDF)

Abstract

The Dobbs decision has been leaked. Gathered outside of New York City’s St. Patrick’s Old Cathedral, pro-choice protesters chant: “Not the church, not the state, the people must decide their fate.” A white man wearing a New York Fire Department sweatshirt and standing on the front steps responds: “I am the people, I am the people, I am the people, the people have decided, the court has decided, you lose . . . . You have no choice. Not your body, not your choice, your body is mine and you’re having my baby.”

Despicable but not unexpected, this man’s comments provide insight into the meaning of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization and the conditions it creates for women, girls, and others capable of pregnancy. Despite the Supreme Court’s assertions that it is returning the decision of abortion back to “the people,” a disingenuous concept from the start, American society currently finds itself facing dueling judicial opinions about whether individuals can access abortion medication (mifepristone) to exercise control over their own bodies and lives. This Article is an exegesis of the statements of this man. His statements and the instincts that support them tell us a great deal about the condition of U.S. society, the state of our democracy, and the relationship of both to the concrete meaning of Dobbs and its “theory of life.” Continue reading

A Jailscraper Rises in New York City’s Skyline and Casts a Shadow Over Manhattan’s Chinatown: An Examination of Its Approval Process

Kimberly Fong

Volume 26.2 (download PDF)

Abstract

New York City will soon have the distinction of constructing one of the tallest jails—if not the tallest—in the world. The jail will be a new addition to New York City’s skyline at 295 feet tall, even taller than Chicago’s Metropolitan Correctional Center. As part of former Mayor Bill de Blasio’s plan to close Rikers Island as a detention center, this jail is part of the Borough-Based Jail Program intended to accommodate a smaller jail population in four smaller jails located in the Bronx, Manhattan, Brooklyn, and Queens. The impetus for closing Rikers came in part from increased concern that pretrial detention has a disproportionately harmful impact on Black and Latinx people. Former U.S. attorney Preet Bharara’s report on abuses of detainees by Rikers staff put the public on greater notice of the conditions at Rikers. High-profile deaths, such as Kalief Browder’s death by suicide after his three-year detention for allegedly stealing a backpack and Layleen Polanco’s death after suffering an epileptic seizure in solitary confinement, further put a spotlight on Rikers’s culture of abuse against detainees. Under this plan, the massive “mega jail” or “jailscraper” will replace the Manhattan Detention Complex in Manhattan’s historic Chinatown.

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An Asian American Challenge to Restrictive Voting Laws: Enforcing Section 208 of the Voting Rights Act in Texas

Kyuwon Shim, Michelle David, and Susana Lorenzo-Giguere

Volume 26.2 (download PDF)

Abstract

Under Section 208 of the Voting Rights Act (“VRA”), any voter who is blind, disabled, or unable to read or write is entitled to assistance to vote by a person of the voter’s choice. Section 208 guarantees that such voter may choose a person they trust to assist them in navigating the voting process and cast a ballot, with only two limitations: To prevent financial influence on the voter’s ballot choices, the assistor cannot be the voter’s employer or union representative. In Texas, this law protects millions of limited-English proficient (“LEP”), disabled, and illiterate citizens. In 2015, the Asian American Legal Defense and Education Fund (“AALDEF”) filed suit against Texas under Section 208 of the VRA, challenging the state’s voter assistance laws. These laws prohibited interpreters from providing voter assistance if they were not registered to vote in the same county as the voter needing assistance. The laws also limited voter assistance solely to marking and reading the ballot; this limitation prohibited assistors from answering clarifying questions about the ballot or otherwise providing basic information about the voting process as a whole, information upon which many Asian Americans and voters who are LEP, disabled, or illiterate relied.

In 2017, the Fifth Circuit ruled on Texas’s appeal of AALDEF’s successful 2015 Section 208 challenge to Texas’s voter assistance laws. Preempting Texas’s county residence requirement for voter assistance, the Fifth Circuit also rejected Texas’s narrow interpretation that Section 208 assistance was only permissible for marking and reading the ballot. On remand, the district court permanently enjoined Texas from enforcing its voter assistance laws, among other forms of relief, that limited assistance to merely marking and reading the ballot. Three years later, in the wake of the 2020 election, Texas legislators enacted another broad set of voting restrictions through Senate Bill 1 (“S.B. 1”). Brazenly, S.B. 1 required assistors to take an oath limiting their assistance to merely marking and reading the ballot and used identical language from the Texas Election Code that the district court had enjoined in 2018. This Article delves into AALDEF’s 2022 success modifying the 2018 permanent injunction to strike down S.B. 1’s voter assistance restriction.

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Sexual Intimacy as a Fundamental, Human Right: Conjugal Visits and the Right to Be Unmarried

Deema Nagib

Volume 26.2 (download PDF)

Abstract

The United States incarcerates approximately 2 million people on any given day, more than any other country in the world. Over the years, we’ve seen growing emphasis on the rights and human needs of the incarcerated. Specifically, there have been growing movements to end the use of solitary confinement; reduce or eliminate the costs of phone calls, visits, and other methods of communication; end prison slavery and implement living wages for incarcerated people; and increase opportunities for education and other meaningful programming. However, little emphasis has been placed on an incarcerated person’s right and ability to be sexual. A desire for sexual intimacy, like many other human needs, does not disappear with incarceration. People who are in prison should have the right to explore their sexuality and sexual intimacy with consenting partners, regardless of their incarceration. To ignore this is to ignore an integral part of incarcerated individuals’ humanity. This Article argues that incarcerated individuals do have a substantive due process right to have sex with a consenting partner, regardless of marital status, which stems from their fundamental right to make decisions regarding their bodily autonomy.

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Prosecutors Must Use Their Immense Discretion to End the Criminalization of Survivors of Gender-Based Violence Who Act in Self-Defense

Tracy Renee McCarter and Samah Sisay

Volume 26.2 (download PDF)

Abstract

In March 2020, Tracy McCarter defended her life during a domestic violence incident that resulted in the death of her husband. She was arrested and subsequently spent months at Rikers Island during the height of the COVID-19 pandemic after being charged with murder in the second degree by the Manhattan District Attorney’s Office. Tracy McCarter’s case is only one example of how the United States’ criminal legal system deems that certain individuals, particularly Black women, have no claim to self-defense. Discussing Tracy McCarter’s case and other cases of self-defense, this Article provides an overview of the limited applicability of self-defense for survivors of gender-based violence and critiques the level of discretion district attorneys have but often refuse to use in these cases. This Article explores the history of selective applicability of self-defense laws that often particularly fail and exclude Black women who protect themselves against gender-based violence. It argues that: (1) arrest, prosecution, and incarceration cause perpetual trauma and block the healing that survivors of gender-based violence need to rebuild their lives after abuse; and (2) district attorneys can reduce the unjust criminalization of survivors of gender-based violence who act in self-defense by using their discretion to drop charges or refuse to prosecute specific cases.

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The Heirs’ Property Problem: Racial Caste Origins and Systemic Effects in the Black Community

Brenda D. Gibson

Volume 26.2 (download PDF)

Abstract

This article enters the conversation about Black poverty in a new way—discussing the phenomenon of the heirs’ property ownership model as an impediment to Black wealth. Though heirs’ property seems a rather innocuous concept in property law, juxtaposed with the history of Black people in the United States, particularly through the lens of the South Carolina Low Country and American systems that have birthed and nurtured incalculable inequities for us, it becomes clear that heirs’ property ownership is much more. It is both cause and effect: cause as it was birthed out of America’s racial caste system; and effect in that it has led to continued Black land loss, which ultimately threatens the culture of America’s slave descendants.

The article begins with an overview of property law’s Estates Systems, discussing the rather antiquated manner in which property rights are enjoyed in America, generally, before moving to the history of Black property ownership in America. This discussion necessarily begins with slavery, a dark but relevant period in this country’s history, as it informs the way Black people, specifically those in the South Carolina Low Country, enculturated themselves and exist to this day. In Part II, the article unpacks the systemic manner in which American institutions have coalesced to impede Black wealth and explains why the loss of Black land and the consequent wealth gap persists in America today. Particularly, Part II discusses the loss of Black-owned land in the Low Country and the threatened loss of a unique Gullah-Geechee culture that exists there. Finally, Part III of the article, considers several solutions to the prolific loss of Black land and the resulting impediment to Black wealth.

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Women’s Dignity, Women’s Prisons: Combatting Sexual Abuse in America’s Prisons

Erin Daly, Paul Stanley Holdorf, Kelly Harnett, Jane Doe, and Domonique Grimes

Volume 26.2 (download PDF)

Abstract

Staff sexual abuse is rampant throughout the American prison system. This is true despite a federal law—the aspirationally titled Prison Rape Elimination Act (“PREA”)—that has been in place for 20 years and despite the rare conviction of prison officials who are found guilty of rape or sexual abuse of people who are incarcerated. Sexual contact between prison staff and incarcerated people is by definition illegal because the power imbalance between people in custody and those who are under their control makes consent impossible as a matter of law. Staff-on-prisoner sexual abuse takes many forms, including sexual humiliation, sexually degrading language and threats, and various forms of rape. The harm of sexual violence in prison is commonly compounded by violations of privacy and by retaliation against those who speak out. To better understand the pervasiveness and profound harms of staff-on-prisoner sexual abuse, this article—co-written by two survivors who were also jailhouse lawyers—examines the harms and demonstrates the inadequacy of the current legal regime to protect women who are incarcerated. It then proposes that understanding prison sexual abuse as a violation of women’s inherent human dignity and applying the law of dignity rights to cases of staff-on-prisoner sexual abuse would better protect women who are vulnerable to abuse inside and help to end the culture of sexual abuse that pervades American prisons and jails.

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“What if You’re Disabled and Undocumented?”: Reflections on Intersectionality, Disability Justice, and Representing Undocumented and Disabled Latinx Clients

Elizabeth Butterworth

Volume 26.2 (download PDF)

Abstract

In Care Work: Dreaming Disability Justice, Leah L. Piepzna-Samarasinha asks a series of questions to illustrate how disability rights law fails to address the needs of those who experience multiple systems of oppression, including: “What if you’re disabled and undocumented?” This article draws on research from across disciplines, with a focus on personal narratives, to reflect on and respond to Piepzna-Samarashinha’s question, specifically with regard to the experience of immigrants who are disabled, undocumented, and Latinx. As such, it centers disability justice analyses and describes how ableism and white nationalism are mutually reinforcing bedrocks of immigration law, and how the immigration system interacts with disability law to restrict disabled and undocumented Latinx immigrants from accessing services and exercising rights.

The article begins by establishing the disability justice framework and its critique of the disability rights movement as both insufficiently intersectional and insufficiently transformative. The article then examines the multiple ways that the immigration system is ableist and disabling: from categories like public charge that have always explicitly valued and devalued individuals based on ability/disability, to restrictions that force immigrants to make an often-disabling journey from Central America to the southern border, to white nationalist rhetoric and policy that deter immigrants from seeking healthcare. The article turns to disability law, and explains how the interaction of an immigration system (which punishes accessing services) and disability law (which often frames access to services as either an end goal of, or a core component of, disability rights) work together to maintain ableist oppression. At the same time, the article centers narratives of Latinx immigrants across multiple contexts that highlight individual and collective action to secure care and support outside of formal legal frameworks.

In addition to making a theoretical contribution, this article is informed by the author’s experiences in civil legal aid clinics, supporting clients as they run up against multiple legal and practical barriers to accessing services to which the law entitles them. One goal of the article is to open a conversation among civil legal aid practitioners, who often represent disabled and undocumented clients on matters that are explicitly related neither to disability nor to immigration, and pushes them toward a more transformative understanding of their work. To that end, this article is explicitly addressed to practitioners and concludes with a list of suggestions for re-framing approaches to civil legal aid.

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No Settled Law on Settled Land: Legal Struggles for Native American Land and Sovereignty Rights

Laura Waldman

Volume 26.2 (download PDF)

Abstract

Since the early years of colonization, Native American people have engaged in continuous legal struggles for land and sovereignty, which have exposed the colonial underpinnings and white supremacist worldview that are the root cause of their ongoing subjugation. In modern times, that often takes the form of government-backed corporate control over natural resources. This note traces the historical links from treaty violations by early white settlers for the purpose of usurping plantation land and gold, to recent incursions by companies building unwanted oil and gas pipelines on Native American lands.

Both then and now, using law as a tool of resistance has had varying results. On the one hand, there are countless instances where the law has been used as a weapon against Indigenous sovereignty, for example allotment leveraged property law to further divide Native American lands, as well as Native American people from their land. The European conceptions of how property ought to be used, enshrined in laws that require land claims to be exclusive, have consistently deprived Native American nations of decision-making over their lands. On the other hand, some treaties have been successful in ensuring enforcement of environmental protections on Indigenous land.

Moreover, the framework that forms the basis for many rights, that tribal membership is a political rather than a racial designation, has been reaffirmed by the Supreme Court. And, though recent judicial efforts to undermine the protective relationship the federal government has with Native American nations have been successful, there is room for deeper understandings of Native American sovereignty to emerge into law—understandings based on inherent, rather than relational sovereignty.

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