Our latest Footnote Forum installation comes from Professors Janet M. Calvo, Shirley Lung, and Alizabeth Newman.*

Janet M. Calvo, Shirley Lung, Alizabeth Newman

Click here for a recommended citation and to download a paginated PDF version of this article.

Non-citizens who are afforded Deferred Action for Childhood Arrivals (DACA) qualify for New York State bar membership. Over four hundred thousand young people in the United States have been approved for DACA, a program for non-citizens who came to the United States as children.[1] Approximately one percent of DACA-eligible non-citizens have pursued graduate education,[2] including law school. The admission of those approved for DACA to the bar is supported by New York statutes and the constitutional jurisprudence of the United States Court of Appeals for the Second Circuit and the New York Court of Appeals. The New York Judiciary Law explicitly precludes alienage as a basis for denial of bar admission. New York has a history of routinely admitting non-citizens to the bar; there is no categorical exclusion from bar admission of any particular category of law graduates based on immigration status. An individual’s immigration category does not determine whether he or she possesses the skills, competence, and moral character to serve as an advocate in the courts of New York and to ethically represent the best interests of clients.

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Caitlin E. Borgmann[1]

Click here for a recommended citation and to download a paginated PDF version of this article.


One might expect that a Supreme Court decision addressing the constitutionality of a citizen initiative that bars marriage between same-sex couples would yield a predictable political division among both the Justices and Court commentators. Liberal Justices and commentators, one might conjecture, would want the Court to recognize a fundamental constitutional right to marriage equality, while conservative Justices and commentators would prefer the issue be left to the political process. The Supreme Court’s recent decision in Hollingsworth v. Perry reflected no such tidy outcome, however. The majority opinion addressing California’s Proposition 8 (“Prop 8”), which amended the state’s constitution to exclude same-sex couples from legally recognized marriage, sidestepped the substantive issue through a procedural maneuver. Rather than reach the merits, the Court held that the official proponents of Prop 8, who had defended its constitutionality both in the district court and on appeal, lacked standing to appeal the district court’s opinion invalidating the initiative. The Court’s decision left marriage equality as the rule in California (although not elsewhere). Liberal Justices Breyer, Ginsburg, and Kagan joined Chief Justice Roberts’s majority opinion, as did Justice Scalia, while conservative Justices Thomas and Alito, and liberal Justice Sotomayor, joined Justice Kennedy’s vigorous dissent. Some liberal commentators who favor marriage equality applauded the Court’s decision.[2]

It is of course not possible to know exactly what motivated each of the Justices in Hollingsworth. But standing is a doctrine that the Court has notoriously manipulated to reach desired results on the merits.[3] Commentators have widely speculated that the liberal Justices who sided with the majority preferred not to reach the merits either because they believed there were insufficient votes to find Prop 8 unconstitutional,[4] or because they believed such a decision might be politically premature and therefore counterproductive, as it might prompt a backlash.[5] Some proponents of marriage equality were quietly relieved by the Court’s refusal to address the merits, since it allowed the district court’s invalidation of Prop 8 to stand without risking an adverse Supreme Court decision that would be binding on all states.[6]

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Prop. 8 Procedural History

[prezi id=”<http://prezi.com/etgn0mra-qd4/perry-v-brown/>”]

EVENT: Thurs., 11/7: Social Justice Through Private Practice*

Social Justice through private practice


Panel will feature the following guests, who bring experience in diverse areas of the law such as tenants’ rights, labor and employment, First Amendment, prisoners’ rights, civil rights, police brutality, and government misconduct:

  • Daniel Alterman (Alterman & Boop LLP)
  • Eric Hecker (Cuti Hecker Wang LLP)
  • Margaret Sandercock (Goodfarb & Sandercock LLP)
  • Naomi Sunshine (Outten Golden)
  • Roger Wareham (human rights attorney)

Join us in the 3rd floor Faculty Lounge at 6 p.m. for a food and wine reception. Panel will begin at 6:30 p.m.

*please note the name change

Call for Submissions

The City University of New York Law Review is seeking submissions for its Summer 2014 issue, which will continue the journal’s tradition of advancing legal scholarship highlighting the touchstones of our publication’s work—including civil rights, progressive legal reform, the impact of the law on minorities and marginalized communities, international human rights, and attorneys’ insights on how recent developments in the law have affected their public-interest practices in New York and beyond.

We are interested in one-page abstracts or finished manuscripts you may have for consideration by our editorial board. Submissions should be remitted to cunylr@law.cuny.edu. Abstracts will be considered through December. Finished manuscripts for approved abstracts have a deadline of December 31, 2013. Offers to publish and final decisions on all submissions will be made on a rolling basis and will be finalized by mid-January 2014.

In addition, the journal is seeking shorter, more time-sensitive contributions—such as comments on recent federal or state case law, critiques of legislative proposals, and legally relevant analyses of current events—for inclusion in our evolving digital platform at the City University of New York Law Review website at www.cunylawreview.org. Submissions for digital consideration should be sent directly to our Digital Articles Editor at ldavis@mail.law.cuny.edu.

Our upcoming Winter 2014 issue includes scholarly works on a range of public interest legal issues, with an emphasis on practical application. Some examples include articles about the hurdles of providing on-the-ground legal assistance after natural disasters such as Hurricane Sandy; the impact of family instability on access to education for children with disabilities; gender inequality in granting asylum requests; how language impairments impact attorney-client relationships; applying a human rights framework in determining services for youth aging out of foster care; policy arguments in favor of stronger single-room occupancy regulations aimed at solving the housing crisis in New York City; and applying contract law to strengthen Individual Education Plans.

We look forward to reading and discussing your manuscript for possible publication, and kindly invite you to forward this letter to other social-justice scholars and practitioners who may be interested in publishing with us.

With our warm regards,

Tatenda, Caitlin, Kate & Cristian
On behalf of the City University of New York Law Review Editorial Board

Save the Date: November 7th at 6 pm

CUNY Law Review will be hosting a panel with the theme “How to Keep Your Soul in the For-Profit World” on November 7th in the Faculty Lounge. Reception at 6 pm, Panel at 6:30 pm.

Details to follow.


We are proud to introduce Prof. Janet Calvo’s discussion of the Windsor decision’s impact on immigration law as part of our ongoing series of web-exclusive pieces by professors, students, practitioners, and others who aim to share timely legal commentary in Footnote Forum, the online companion of the Law Review. For more on this opinion, see Prof. Ruthann Robson’s related piece.

Janet M. Calvo*

Click here for a recommended citation and to download a paginated PDF version of this article.

The Defense of Marriage Act (DOMA), barred federal immigration authorities[1] as well as other federal officials from recognizing same-sex marriages. Now that DOMA has been declared unconstitutional in U.S. v. Windsor,[2] the federal officials that implement immigration law have declared that same-sex marriages will be recognized to the same extent as opposite-sex marriages. This has implications for several aspects of immigration law and practice. On July 1, 2013 the Secretary of Homeland Security directed the U.S. Citizenship and Immigration Services (USCIS) “to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse,”[3] and the USCIS posted additional information about implementation.[4] On August 2, the Secretary of State similarly stated “when same-sex spouses apply for a visa, the Department of State will consider that application in the same manner that it will consider the application of opposite-sex spouses,”[5] and the Department of State website provided further detail, in line with the USCIS position.[6]

Further, on July 17, 2013, the Board of Immigration Appeals (BIA) issued a decision[7] stating that DOMA was no longer an impediment to recognition of same-sex marriages; therefore, a same-sex spouse would be recognized under immigration law if the marriage were valid in the state in which it was celebrated, and was bona fide.[8] This case involved the non-citizen same-sex spouse of a U. S. citizen who had filed a petition on behalf of that spouse. The Director’s determination had found that the marriage was valid under the laws of Vermont where the marriage was celebrated, but did not grant the petition. The BIA held that, after Windsor, the sole remaining issue was whether the marriage was bona fide—i.e., whether the marriage was entered into solely for the purposes of immigration—and remanded the case to allow the Director to make that determination.

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Case Comment: United States v. Windsor

We are proud to introduce Prof. Ruthann Robson’s comment on United States v. Windsor as part of our ongoing series of web-exclusive pieces by professors, students, practitioners, and others who aim to share timely legal commentary in Footnote Forum, the online companion of the Law Review. For a discussion of this decision’s impact on immigration law, see Prof. Janet Calvo’s related piece.

Ruthann Robson*

Click here for a recommended citation and to download a paginated PDF version of this article.

A landmark. A victory for “gay rights.” An example of judicial activism.

Each of these appellations is an accurate descriptor of the Court’s decision in United States v. Windsor, rendered on the last day of the 2012–2013 term. By a bare majority, the Court declared Section 3 of the Congressional Defense of Marriage Act (DOMA) prohibiting federal recognition of same-sex marriages unconstitutional. The Court resolved the threshold issue of whether it had Article III power to hear the case, given the unusual posture of the litigation, in favor of rendering a decision, unlike the outcome in the companion case of Perry v. Hollingsworth involving the constitutionality of California’s Proposition 8.[1] The Court’s reasoning included a discussion of Congressional power to pass DOMA, given that marriage and other family matters are generally within the province of the states under federalism as it has developed in the United States. Ultimately, however, the issue was not one of Congressional power. Instead, the majority concluded that DOMA’s Section 3 violated the equal protection component of the Fifth Amendment.

The facts underlying United States v. Windsor have been subject to much media attention. Edith Windsor is a sympathetic and charismatic plaintiff, aged 83 at the time of the decision, whose monetarily specific injury consisted of the $363,053 she paid to the federal government in federal estate taxes because of the non-recognition of her same-sex marriage to her deceased partner, Thea Spyer.[2] The couple had been married in Canada in 2007, and their marriage was recognized by their home state of New York when Thea Syper died in 2009, although New York itself did not itself license same-sex marriages until 2011.[3] Thus, except for the operation of DOMA Section 3, Edith Windsor would have been considered a “spouse” under federal law and entitled to the spousal exemption from estate tax.

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EVENT: Judiciary Night

Judiciary Night Poster

Poster Courtesy of the Special Events Editors

CUNY Law Review invites you to the 2013 Judiciary Night on September 26, 2013 from 5:30 to 9:00 p.m.

The CUNY Law Review Board is orchestrating a diverse panel of judges from New York and will facilitate what we hope will be an engaging dialogue.

The following judges will be in attendance:

Hon. Denny Chin
Judge, Second Circuit Court of Appeals

Hon. Carol Jordan
Support Magistrate, New Rochelle Family Court

Hon. Andrea Masley
Judge, Civil Court of the City of New York

Hon. Margaret McManus
Immigration Judge, EOIR Immigration Court, New York City

Hon. Diccia Pineda-Kirwan
Judge, Supreme Court of the State of New York, Queens County

The panel will be followed by a wine and dinner reception
around 8pm (Vietnamese food with vegetarian, vegan, and
gluten-free options). We hope to see you there!

UPDATE: We are pleased to announce that the event will be
moderated by Prof. Donna Hae Kyun Lee. It will take place
in the auditorium on the second second floor. Directions to CUNY
School of Law can be found here.

Event: Tribute to Justice

Final Horman Tribute FlierTribute to Justice:
Creating Accountability for Human Rights Crimes and The Future of Universal Jurisdiction
By: The Charles Horman Truth Foundation

Monday, September 9th, 2pm–5pm
583 Park Avenue (at 63rd St.)

On the 40th Anniversary of the September 11th Coup D’Etat in Chile, justice champions who brought coup leader Augusto Pinochet to account for crimes against humanity gather to discuss the legal doctrines their efforts brought into being, and the worldwide attention brought to the doctrine of Universal Jurisdiction.

Judge Baltazar Garzon,
Spanish Judge whose arrest warrant led to Pinochet’s detention in UK

Sir Geoffrey Bindman, QC,
British attorney whose efforts led to UK detaining Pinochet

Joan Garces,
Spanish human rights attorney who paved path for Universal Jurisdiction

Reed Brody,
Human Rights Watch attorney active in efforts to detain Pinochet

Peter Weiss,
CCR Vice President, attorney in Filartiga and Horman v. Kissinger

Almudena Bernabeu,
Director of CJA’s Transitional Justice Program

Judge Juan Guzman Tapia,
prosecuted Pinochet in Chile

Jennifer Harbury,
human rights attorney, activist, author

Peter Kornbluh,
National Security Archive

Welcoming Remarks by Cynthia Soohoo, Director,
CUNY Law International Women’s Human Rights Clinic

To register for the FREE educational panel, go to http://www.hormantruth.org/ht/ 
For CLE information, contact franklin.siegel@law.cuny.edu

Co-sponsored by the CUNY School of Law, the Center for Constitutional Rights, the Institute for Policy Studies and the North American Congress on Latin America, with support from the Ford Foundation