CPLPEJ Blog

Members of the Cardozo Public Law, Policy, and Ethics Journal are passionate about a variety of current and important public policy issues. On this page, we proudly showcase blog posts that our editorial board members and staff editors have chosen to written about. These blog posts can also be found on our Facebook and LinkedIn pages.

Microsoft Begins Campaign against the US due to Surveillance by Vasilios Stotis, Staff Editor, CSL ’17 

April 18, 2016

Last Thursday, Microsoft filed a suit against the Justice Department in Federal District Court in Seattle. They take issue with the Electronic Communications Privacy Act of 1986 which, among other things, extended government restrictions of wiretaps from telephone calls to include transmissions of electronic data by computer. The main focus of the suit however concerns 18 U.S.C. § 3123(d)(2), or the “gag order statute” which directs the recipient of a pen register or trap and trace device order not to disclose the existence of the pen/trap or the investigation.

Microsoft claims that the US government has been using this provision increasingly, which prevents Microsoft from telling people when the government obtains a warrant to read their emails. Microsoft challenges the statute on Fourth Amendment grounds of search and seizure as well as First Amendment grounds of Microsoft’s right to speak to its customers. Because of the emergence of cloud computing, customer data is more likely to be found on Microsoft’s servers rather than in the traditional filing cabinets or hard drives of earlier years. It is much harder for the government to access data that one stores in their own office. Now, the US government can use these gag orders to make Microsoft reveal information without telling the person.

This gag order statute has been used by the US government for many companies other than Microsoft. The effects of this on people’s personal property are tremendous. In the wake of the FBI scandal with Apple where the government attempted to make Apple create software to open a phone, people are starting to become more aware that their information is unsafe and unprotected. Messaging apps are currently being released that provide end to end encryption to make sure that messages are more secure. By publicizing the acts of the government, Microsoft and Apple are keeping the public informed so that they can fight to protect rights that should be protected by the Constitution. The advent of new technology should not give the government a free pass to our most precious and prized information.

Justice Scalia or: How I Learned to Stop Worrying and Love the Bomb by Jessica Ahoubim, Staff Editor, CSL ‘17

April 6, 2016

Moments after the news began reporting that Justice Antonin Scalia died, the Internet broke out in celebration, “Let the joyous news be spread, The Wicked Old Witch at last is dead!” An “Onion” headline read “Justice Scalia Dead Following 30-Year Battle With Social Progress.” Jeffrey Toobin, the law critic for the New Yorker, summarized the lack of compassion for the veteran Justice by arguing that he had “devoted his professional life to making the United States a less fair, less tolerant and less admirable democracy.” Chief among the grievances against Scalia are his “revulsion toward homosexuality,” epitomized in his dissents in Romer v. Evans and the more recent Obergefell v. Hodges. Scalia’s “Originalist” interpretation of the Constitution is described by Toobin as a “theory holding that the Constitution should be interpreted in line with the beliefs of white men,” and by Richard Posner as “incoherent.”

Yet for some of us who love clean air, support affirmative action and gay rights, believe in the right to abortion, and are grateful recipients of Obamacare, we still cannot share the enthusiasm for Scalia’s absence on the Court. In countless cases involving procedure, Scalia’s formalist and arguably principled voice cut through the fog of his functionalist counterparts. In response to what he saw as a “distortion” of constitutionally mandated procedures, Scalia consistently suggested that the ends do not justify the means.

How can we celebrate the absence of the voice, dissenting in Hamdi v. Rumsfeld, that the AUMF did not justify the imprisonment of a suspected terrorist and denial of the Writ of Habeas Corpus? “If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this Court.” Similarly, in the field of criminal procedure, Justice Scalia railed against what he found to be the erosion of individual liberties for the purpose of expediency. In Maryland v. Craig, when the Court found that testimony by a child via closed-circuit television did not violate a defendant’s Sixth Amendment right to confront a witness, Justice Scalia dissented, writing that judges were not “free to conduct a cost-benefit analysis of clear and explicit constitutional guarantees, and then to adjust their meaning to comport with our findings.”

While Toobin confidently anticipates Scalia’s views becoming obsolete, it is nevertheless shortsighted. Undoubtedly, the substance of many of his decisions showed the shades of a Roman Catholic opposed to liberal principles. But on the other hand, in death, Scalia may qualify as the patron saint of procedure.

PACA Trusts and Legal Fees by Brianna Paolicelli, Staff Editor, CSL ’17

March 31, 2016

Congress enacted the Perishable Agricultural Commodities Act (“PACA”) in 1930 to regulate commerce in “[f]resh fruit and fresh vegetables of every kind and character.”[1] Due to the need to sell perishable agricultural commodities quickly, produce growers often find themselves in the unenviable position as unsecured creditor to companies, whose creditworthiness they are unable to verify.[2] Designed to insulate these suppliers from the risks of sharp practice and default by buyers and dealers, PACA recognizes that produce growers operate in an industry that is almost exclusively engaged in interstate commerce, that is highly competitive, and where opportunities for irresponsible business conduct and unfair methods are numerous.[3]

To protect these sellers and suppliers of produce, PACA establishes a scheme whereby produce dealers who purchase perishable agricultural commodities on credit are required to hold it and its derivatives or proceeds in a statutory, floating trust for the unpaid seller.[4] This trust provision ensures that, in the case of default, sellers recover before banks and other lenders to whom dealers may have given security interests in inventories, proceeds, and receivables.[5] This directive evinces no exceptions.[6]

In Delta Produce, the Fifth Circuit considered a case where two produce dealers filed for bankruptcy. The bankruptcy court appointed an attorney, Craig Stokes, as Special PACA Counsel to collect and disburse funds to PACA-protected sellers with claims against the now-bankrupt purchasers.[7] In this role, Mr. Stokes was responsible for preserving and collecting PACA trust assets to facilitate their distribution among the trustees.[8] During the pendency of the PACA litigation, he filed three fee applications seeking hundreds of thousands of dollars in payment for his services.[9] However, one trustee objected, arguing that Stokes should not be paid from the PACA trust, but rather be required to recover from the debtor’s estate.[10] This raised the question of whether the special counsel’s fees and expenses could be disbursed from the PACA fund.[11]

The Fifth Circuit held that an attorney appointed as “Special PACA Counsel” may not be paid from trust assets until the amount owed to all claimants have been disbursed.[12] The court partially relied on a Second Circuit decision finding that because Stokes acted as a trustee, he was only entitled to attorney’s fees paid from the trust after its beneficiaries received payment in full.[13] Although it is important for those who advocate for produce suppliers to be fairly compensated, this ruling was correct in supporting suppliers of perishable agricultural commodities and ensuring that they receive the protections promised to them by Congress.  Because they maintain—pending full payment—an equitable interest in the PACA trust, it is necessary that beneficiaries receive full compensation before trustees can lawfully use the trust’s funds to pay any other creditors, including attorneys.

[1] 7 U.S.C. § 499a(b)(4)(A).

[2] Endico Potatoes, Inc. v. CIT Grp., 67 F.3d 1063, 1067 (2d Cir. 1995).

[3] H.R. Rep. No. 1196, 84th Cong. (1955), reprinted in 1956 U.S.C.C.A.N. 3699, 3701; see In re Kornblum & Co., 81 F.3d 280, 283 (2d Cir. 1996).

[4] Kornblum, 81 F.3d at 284-87.

[5] In re Delta Produce, L.P., No. 14-51079, 2016 WL 945185, at *8 (5th Cir. Mar. 11, 2016).

[6] Id.

[7] Id. at *1.

[8] Id. at *3.

[9] Id.

[10] Id.

[11] Id. at *1.

[12] Id. at *10.

[13] Id. at *4, 10. See C.H. Robinson Co. v. Alanco Grp., 239 F.3d 483 (2d Cir. 2001) (noting that trust assets are insulated from the buyer’s bankruptcy estate and that awarding attorney fees before trust beneficiaries receive full payment would violate the language of PACA and its regulations).

Only a Citation For Public Urination by Thomas Milanese, Staff Editor, CSL ’17 

March 24, 2016

In the “The Parking Garage” episode of the show Seinfeld, the main character, Jerry, gets busted for public urination. In an effort to convince the law enforcement officer to release him, Jerry concocted a lame — albeit very comical — excuse that if he didn’t urinate he could’ve gotten “Uromysitisis” poising and died. Unsurprisingly, his excuse was of no avail.

Today, if that scene took place in Manhattan it would play out much differently. Under a newly implemented policy, police officers in Manhattan will no longer arrest people for so called “quality-of-life” offenses. These are minor offenses like public consumption of alcohol, taking up two seats on the subway, littering, and public urination.

Instead of making an arrest, police officers will now issue summonses for these minor crimes. A summons is an order to show up to court at a future date to answer questions before a judge. The judge will then decide whether to dismiss the ticket or impose a fine. It is estimated that this change in policy will result to in 10,000 fewer cases being prosecuted in Manhattan Criminal Court, allowing police officers and prosecutors to spend more time on the serious crimes that actually threaten public safety.

The punishment for not showing up to court after being issued a summons has also changed. Previously, if an individual didn’t show up to court it would result in a bench warrant being issued for their arrest. A majority of the individuals affected by this were either poor people or minorities, and because they would now have an arrest record, it would limit their ability to get jobs, education and housing. Now, instead of being arrested, people who have an open warrant from these minor offenses will be detained and taken to an arraignment part of Criminal Court. Officials say being taken to the arraignment part does not constitute an arrest. Critics on the other hand point out that this isn’t much of a change because people are still being deprived of their liberty when they are detained and taken to court to be arraigned.

Overall, I think the new policy successfully addresses the problem at hand. By not arresting individuals for these small crimes, the policy ensures that the Criminal Court will not get bogged down with unnecessary cases. Additionally, the issuance of a summons should still serve as a sufficient deterrent to avoid an increase in the commission of these crimes. Although critics suggest that the change in punishment for not showing up to court is meaningless, I disagree. Because individuals will no longer be arrested for bench warrants stemming from these minor crimes, they now don’t have to worry about these minor crimes resulting in an arrest record. This should prove beneficial in the long run.

http://www.nytimes.com/2016/03/02/nyregion/summonses-not-arrests-for-small-crimes-in-manhattan.html?_r=0; http://www.nydailynews.com/new-york/nyc-crime/minor-offenses-manhattan-no-longer-result-arrests-article-1.2549474

Living on the Island of Isolation and Jail Cells by Nataly Cohen, Staff Editor, CSL ‘17

March 7, 2016

Imagine living on a beautiful island with waterfront views overlooking Queens and the Bronx, and even more appealing are the affordable prices. It seems like the perfect home, but is it? The current City Council Speaker Melissa Mark-Viverito recently introduced the idea of closing down Rikers Island and the potential options to develop the land.

Rikers Island is a jail complex with over 7,800 detainees, most of whom are merely waiting for their day in court. For eighty five percent of these detainees, it is their first offense and they are stuck simply because they can’t post bail. They remain isolated on the island, unable to see their families, because it is far and expensive to travel to. The jail is even dangerous for the detainees.  They are often assaulted by fellow inmates and correction officers, and receive little treatment to prevent them from being arrested again. For example, sixteen year old Kalief Browder was arrested for allegedly stealing a backpack and remained in solitary confinement for three years until this trial. Although Mayor Bill de Blasio fears the expenses incurred with shutting down the jail and relocating it, the possibility is quite feasible. Alterations in the legal system such as reducing bail for convicts who are not dangerous, transferring detainees who are mentally ill for treatment, and transferring the remaining detainees to other jails in the five boroughs would resolve the problem. The greatest cost, at about three hundred million dollars, has been transporting the detainees to different courts in the boroughs, crossing bridges and tolls every day when their trial date finally arrives. The thirty buses used each day for transport have to pass at least two checkpoints each way, and require the help of several employees and excess time. With suggested reform efforts, there is great potential for the land to be more beneficial than harmful; the only question is what would be done.

It seems absurd for a jail complex to be converted into twenty five thousand affordable apartments capable of housing a minimum of sixty five thousand people, but it’s a possibility. There are even talks of building a complete community on the island, including several schools, parks and even a bridge to Astoria, Queens. The city has made other considerations about what it may do with the property.   For example there have been discussions to extend LaGuardia airport, or even build a manufacturing hub that would employ eight thousand people, including former detainees who find it difficult to find jobs.

Closing the jail complex on Rikers Island would transform the four hundred and thirteen acres into a more positive atmosphere. Through the judicial reforms mentioned above, the city can decrease the mistreatment of detainees and develop the land. Most of the detainees are not dangerous and have been incarcerated for the first time for small offenses. They are being mistreated, causing them to potentially commit a crime while in jail. Although it would be costly to shut it down the money being saved, roughly over nine and a half million dollars, could be invested into developing the property. Regardless of the development option the city takes, it would be in everyone’s best interest and beneficial to replace the jail on Rikers Island. The city can even create incentives for developers willing to invest in the island.

1)http://www.crainsnewyork.com/article/20160228/OPINION/160229892/closing-rikers-is-feasible-and-easier-than-fixing-the-decrepit

2)http://www.crainsnewyork.com/article/20160228/REAL_ESTATE/160229896/rikers-reimagined-innovative-ideas-to-turn-the-infamous-island-into

School Shootings and Apple by Joshua Goldstein, Staff Editor, CSL ‘17

February 22, 2016

In 2015, there were over 50 school shootings in the United States of America. There was at least one school shooting a week. That statistic is worrisome on so many different levels. It seems that it is almost impossible to turn on the television or go onto the Internet without hearing or reading about another incident. As an avid social media user, especially on Twitter, I cannot recall the last time I went to read my feed and did not see a story of some shooting occurring. The obvious question is how do we eliminate these atrocious events? Another question is what do we do now once these shootings happen?

One of the biggest school shootings this past year was the shootings at San Bernardino, California. Two attackers killed fourteen people. One of the attackers was Syed Rizwan Farook. The FBI wanted Apple to unlock Mr. Farook’s iPhone. The FBI said that only Apple was able to bypass its security features. The FBI said they tried unlocking the phone but they are at risk of losing all data because it unsuccessfully tried to bypass security functions ten times. Judge Pym of the Federal District Court of the District of Central California ordered Apple to bypass security functions on the iPhone used by Syed Rizwan Farook. Timothy D. Cook, the Chief Executive of Apple, came out with a statement on behalf of Apple stating it would not comply with the court order. Apple’s reason for not complying with the court order was that it wanted to protect the privacy of its costumers. Furthermore, in 2014, Apple and Google, whose operating systems are used in 96 percent of smartphones worldwide — announced that they had re-engineered their software with “full disk” encryption, and could no longer unlock their own products as a result. Additionally, Apple is concerned that if they do create a program that would crack the security features, that this would also create a vulnerability that Chinese, Russian, and Iranian hackers could exploit.

This creates a very interesting dilemma. On one hand, we want to get as much information and data on these attackers and give justice to the families that have been affected by the shooting. But on the other hand, we do not want to create a situation where foreign hackers can get into our phones.

One possible solution would be to create a system that just bypasses this particular phone, but Apple would contend that this would cause a slippery slope. Since they unlocked this phone’s security function, they will have to do the same to other phones in the future for various situations. Both sides of the debate have valid points and worries. It is certainly going to be interesting to see how this story ends. Either the court can force Apple to create this software allowing the court access to the attackers data and information and risk the possibility that this system can be hacked and international hackers can get into everyone’s phone. Or the court will not force Apple to create a program and there will certainly be outrage and backlash from many people.

Twitter Fingers Proving Trigger Fingers: How Social Media is Used in the Courtroom by Michael Luke, Staff Editor, CSL ‘17

November 4, 2015

With the advent of social media, more and more individuals are allowing the world to know how they are feeling, what they are doing, where they are and who they are with. This kind of information is playing a new and interesting role in criminal and civil litigation. One of the many issues with this new kind of evidence is verifying whose accounts and whose photos are whose.

Recently, the popular social media site Twitter received a grand jury subpoena from the Attorney General of Pennsylvania. The subpoena is requesting verifying information about Twitter accounts relevant to the case. The ACLU of Pennsylvania plans to challenge the subpoena in court, however, Facebook, a similar website, has already complied with multiple subpoenas from other courts verifying users accounts.

While a website like Twitter is mostly composed of typed comments that provide little information about the user even without hard verification, Facebook account postings can verify the user without the need of a subpoena. A Facebook account generally has multiple pictures of the user, providing self-verification without the necessity of formalities. Regardless of whether the attorneys actually bring the pages to court, there have been cases of jurors themselves looking up plaintiff’s and defendant’s social media pages and finding information that affects their view of the parties. Unless the client’s attorney extensively manicures these postings, they can present information that can hurt their cases. Postings have also been used to verify alibis for people’s whereabouts with new “checking in” features. This is the other side of the social media issue in which it is working for the party instead of against them.

Although some things can be deleted from a social media page for the public to see, often the website itself still retains this information. This makes subpoenas especially dangerous. Without the subpoena it would be a race to delete a page before opposing counsel could see it; with a subpoena, nothing is safe.

Whether the courts approve of it or not, social media is being used as evidence in court cases. What was once just a fun way to express yourself is now a reflection of your character- a reflection that is easily accessible and attributable. Therefore, we should all use more critical judgment as to what we put online.

A Bill Protecting Rent-Regulated Housing by Brianna Paolicelli, Staff Editor, CSL ‘17

October 27, 2015

This summer, the New York City Council proposed a bill targeting landlords who illegally use rent-stabilized apartments as hotel rooms through online services like Airbnb.  While a landlord with a rent-stabilized apartment can often only charge a certain amount of rent, usually no more than $2,500 per month, he or she can often rent out the same apartment as a short-term rental at a higher rate.  Although the state’s Illegal Hotels Law makes this practice illegal in New York City, many landlords are tempted by the allure of higher profits.  The new City Council bill would increase the fine for a first-time offense from $1,000 to $10,000.  The maximum fine would be $50,000.

This week, the online rental company Airbnb sent a three-page letter to City Councilman Jumaane Williams, the Chairman of New York City’s Housing and Buildings Committee.  In its letter, Airbnb’s Global Head of Public Policy referred to the recent legislation as the “Freddy Krueger” of bills.  Stating that it was “bad policy,” Airbnb alleged that the new fines would bankrupt middle class families.  However, noting that last year’s investigation led Attorney General Eric Schneiderman to conclude that that nearly three-quarters of Airbnb’s bookings in New York City were illegal, Councilwoman Rosenthal described the letter as “disingenuous from the first sentence to the last.”  Councilman Williams pointed out that whenever a landlord is caught renting out his or her apartment illegally, it’s because they are doing it repeatedly.  Both Councilmembers highlighted the fact that the bill is targeted at greedy landlords who illegally rent out rent-regulated apartments and thereby exacerbate the city’s housing crisis.

New Yorkers should be able to regulate the illegal renting of apartments.  The problems caused by a dwindling pool of affordable housing are exacerbated by this practice, and the cost is seen is skyrocketing rents across the City.  The people who are hurt the most by this are often low- and middle-income families who find themselves priced out of many new market rate apartments while, at the same time, rent-regulated apartments seem to be disappearing.   In addition, many online services do not perform background checks on hosts or renters, a problem that has led some to question the safety of renting an unregulated, illegal hotel.

Daily Fantasy Sports and the Billion Dollar Legal Question by Thomas Milanese, Staff Editor, CSL ‘17

October 19, 2015

If you’ve watched television recently you’ve probably seen a commercial for DraftKings or FanDuel.  These two companies are the leaders in the Daily Fantasy Sports (DFS) industry.  DFS websites, like DraftKings and FanDuel, allow customers to pay entry fees to draft a virtual sports team of professional athletes from a specific league. The customers’ teams then compete against one another for prize money based on the real-world performance of the athletes.

The two DFS companies have spent inordinate amounts of money on advertising, leading to an increase in their popularity. However, this increase in popularity has also lead many to ask the same question. Is this legal?

Well, it appears the process to answer that question is officially underway. The FBI and the U.S. Justice Department are now examining whether the DFS business model violates federal law. In 2006, Congress passed the Unlawful Internet Gambling Enforcement Act (UIGEA), which prohibits gambling businesses from knowingly accepting payments in connection with the participation of another person in unlawful Internet gambling. However, the law also carved out an exemption for skill-based games. DFS websites did not become popular until after the UIGEA was enacted and have since operated under this skill-based exemption.

The Justice Department is now trying to determine whether DFS websites fall within the exemption set forth in the UIGEA. If the Justice Department determines that these DFS websites are a form of gambling not protected by the UIGEA, it could suffocate a billion dollar industry with powerful investors such as Comcast Corp. and 21st Century Fox Inc. This may put pressure on Congress to amend the UIGEA or pass new legislation protecting the DFS industry. If the Justice Department finds that DFS websites fall within the exemption, it still may force Congress to act. DFS is a rapidly growing industry and is currently self-regulated. This makes it increasingly susceptible to fraud, and raises serious questions about consumer protections. In fact, the New York Attorney General has launched an inquiry looking into the possibility that DraftKings and Fanduel employees have won lucrative prize money payouts by using company information not available to the public.

Whatever decision the Department of Justice makes will certainly create several intriguing subplots.  Watching it all play out should be interesting, unlike the DraftKings and FanDuel commercials that consistently invade our daily programming.

Gun Violence and the Second Amendment by Rachel Azarow, Staff Editor, CSL ‘17

October 11, 2015

In the wake of the fatal shooting in Rosenburg, Oregon on Thursday, October 1, 2015, America has once again taken up the stale debate over gun control. As President Obama described the frequent shootings in this country, “Somehow this has become routine. The reporting is routine, my response here at this podium ends up being routine, the conversation in the aftermath of it. We’ve become numb to this.” There are shouts on the Internet: “the Second Amendment”, “the right to defend oneself,” “if someone else on the scene had been carrying a gun, they could have stopped the gunman.” “We need to fight the stigma of mental illness and get those who need treatment the treatment they need.” “More gun control laws are the answer, we are the only developed nation on earth that has a mass shooting every couple of months because we do not have the stringent laws of our friends and allies across the globe.” The real question is: What would this legislation look like? Should gun regulation mirror automobile regulation? Can the government require those with mental illnesses to be put on a registry and blocked from gun ownership? Can we change the Second Amendment to reflect a modern America where militias are not popping up to bring down a monarchy?

In April, 2014 the Washington Post printed an excerpt[1] from former Supreme Court Justice John Paul Stevens’ book, Six Amendments: How and Why We Should Change the Constitution. The essay, The Five Extra Words That Can Fix the Second Amendment, asserts that power regarding the rules and regulations of firearms belongs to the legislature, and that Constitutional provisions curtailing this power do more harm than good. The Second Amendment reads:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

The Second Amendment seeks to limit the powers of the infant federal government, making sure that States could raise militias against the potential threat posed by a national standing army. This same sentiment is reflected in the Oregon Constitution, Art. I § 27:

“The people shall have the right to bear arms for the defence (sic) of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.]”

However, in Oregon, the language reaches beyond that of the Second Amendment. Rather than granting the right to bear arms only as a means to raise a militia, the Oregon legislature additionally allows the exercise of this power in self defense and defense of the State. However, the language also warns the national Military against acting outside of the civil power.

The right to bear arms is fundamentally rooted in the balance of State and Federal power. Justice Stevens points out that, for most of the United States’ existence, federal judges understood that the right to bear arms was limited to keeping and bearing arms for military purposes. Justice Stevens also notes that, while the Second Amendment limited the federal government, it did not limit the power of states to regulate the ownership or use of firearms, allowing the 1939 unanimous decision in United States v. Miller that “Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a ‘well regulated Militia.’” It was not until 2008 that the court decided, 5 to 4, in “District of Columbia v. Heller that the Second Amendment protects a civilian’s right to keep a handgun in his home for purposes of self-defense.” In another vote of 5 to 4, in 2010 “the court decided in McDonald v. Chicago that the due process clause of the 14th Amendment limits the power of the city of Chicago to outlaw the possession of handguns by private citizens.” Justice Stevens points out that the majority in Heller interpreted the Second Amendment as though its primary purpose was to protect the common-law right of self-defense, “[b]ut that common-law right is a procedural right that has always been available to the defendant in criminal proceedings in every state.”

Justice Stevens suggests that the misinterpretations of the Second Amendment could be rectified if Congress simply added five words to the Amendment. Justice Stevens’ edited amendment would read:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

This version of the Amendment would only remove the emotional arguments “that the right to possess a deadly weapon is so important that it is protected by the federal Constitution . . . .” Further legislation would be required to begin regulations that could prevent the massacre of schoolchildren, such as the Newtown killings, the 2013 murder of government employees at the Navy Yard in Washington, the multiple shootings at Fort Hood, Texas; targeting reporters in Virginia, a church group in Charleston; and the murder of college students at Virginia Tech, or at Umpqua Community College in Oregon. Removing the Second Amendment from gun control arguments would be the first step towards the meaningful regulatory legislation that the United States so desperately needs.

[1] https://www.washingtonpost.com/opinions/the-five-extra-words-that-can-fix-the-second-amendment/2014/04/11/f8a19578-b8fa-11e3-96ae-f2c36d2b1245_story.html

Will Landmarks Last? by Nataly Cohen, Staff Editor, CSL ‘17

October 7, 2015

Establishing landmarks throughout the United States has always been crucial in maintaining the authenticity and the rich history of our country, but it doesn’t seem like anyone benefits by owning one. Especially in New York City, where major investors are developing office towers to exceed the last. With the transformation of small neighborhoods such as Tribeca into massive condominiums and office buildings, the NYC Landmarks Preservation Committee has been working hard to maintain its established landmarks. Grand Central Terminal, for example, was established as a landmark in 1976. Directed to prevent the surrounding area from becoming commercialized by large office towers, the decision to establish it as a landmark seems to have failed today. Recently Mayor De Blasio has passed a zoning plan to allow larger buildings such as One Vanderbilt; a sixty five-story office building developed by SL Green Realty.

Meanwhile, investors such as Andrew S. Penson, who believed in the preservation of New York’s history, stands to lose massive amounts of profits. In 2008, Mr. Penson purchased the Terminal for $80 million with the understanding that he could not develop the property, yet with the intent to sell the millions of square feet in air rights to neighboring investors. After an unsuccessful negotiation with SL Green Realty Mr. Penson has filed a $1.1 billion lawsuit, arguing that the Mayor’s administration, City Council and SL Green Realty, deprived him of his property rights by allowing the realty group to develop an office tower 1,500 feet tall. Mr. Penson argues that SL Green is benefitting from their political ties to the current administration and obtained the air rights for free. In response, SL Green claims that they promised to invest $220 million into the tracks of Grand Central terminal in exchange for the rights and the zoning revisions. By allowing SL Green to do so, this would make Mr. Penson’s objective for buying the Terminal in the first place, and the investment altogether, worthless.

If preservation of the city’s beginnings is the objective of establishing landmarks the city has proven to accomplish the opposite. The city changes every day and it should not be that one investor benefits from their private affairs by having a leg up in politics. Changing zoning laws and distributing air rights should be based on the city’s needs and not merely to profit financially. If Penson does not get paid for his air rights it will disincentivize other investors from participating in preserving the city’s history and landmarks. The Mayor’s administration in conjunction with the NYC Landmarks Preservation Committee must remain sturdy and take the proper steps to conserve the current and prospective landmarks in our beloved city.

Brain Diseases and the NFL by Joshua Goldstein, Staff Editor, CSL ‘17

September 30, 2015

A major topic that is discussed all year round is safety in sports. When the football season begins the discussion about safety becomes even more prevalent. Concussions and brain related injuries are very common for football players. Football players are paid millions of dollars to put on helmets and pads and to rough each other up. Many argue that there are way too many brain related injuries and that the sport is too hazardous to the players as is. One of the major obstacles, however, is how does the NFL fix this problem. What can they do to prevent so many injuries?

A recent study conducted by the Department of Veteran Affairs and Boston University has revealed that 79% of all NFL players have a degenerative disease know as Chronic Traumatic Encephalopathy, also known as CTE. The disease is believed to form from repetitive trauma to the head. CTE can lead to dementia, depression, and memory loss. It is not an easy process to test for the disease. Doctors do use brain scans to help detect the disease, however, CTE can only definitely be found posthumously. Although it isn’t easy to test for the disease, this study is consistent with research that there is a strong link between football players and long-term brain trauma. There are still critics who believe that these researchers are blowing it out of proportion, and that the medical issues are not as bad as there are making it seem. This is a huge issue that needs to be resolved.

The NFL is aware of the numerous brain injuries the players past and present suffer from. The NFL has revised safety rules to minimize head-to-head contact. In the 2015 Health & Safety Report it was reported that concussions in regular season games has fallen 35% over the past two years. That seems to be tremendous progress, until you learn that 112 players got concussions last year. To put that number into better perspective- there are 53 men on each team- that means that more than two full teams of players suffered from a concussion last season.

The question becomes: what can the NFL do to continue decreasing the number of concussions and the amount of brain related injuries? The NFL has begun to implement new regulations to decrease the chances of brain injuries. The NFL has added rules that prohibit a player from launching himself off the ground and using his helmet to strike a player in a defenseless posture in the head or neck. The old rule only applied to receivers getting hit, but now it will apply to everyone. The league also added that when a player loses his helmet, the play is immediately whistled dead. But these rules, although a good start, aren’t showing substantial results.

The NFL should implement even stricter safety regulations. The NFL should even try to assimilate thicker helmets with more padding in the inside. The NFL should maybe even consider decreasing the amount of preseason and regular season games to decrease the potential chances of more concussions and brain injuries.  There are four preseason games and sixteen regular season games, and some teams play even more games if the reach the playoffs. This is obviously an issue that is not yet resolved, but it must be for the safety of the players.

The Zadroga Act and Our Duty to the Dust Lady by Jessica Ahoubim, Staff Editor, CSL ’17

September 20, 2015

Several weeks before the fifteenth anniversary of 9/11, 42 year-old Marcy Borders of Bayonne, New Jersey, better known as the “Dust Lady”, died from stomach cancer. The media quickly capitalized on her death as a convenient story for the anniversary and her surreal portrait lingered around the Internet for several days afterwards. Obituaries noted that Borders suspected the toxins she was, very visibly, exposed to on 9/11 triggered the cancer. Borders explained, “every time I inhaled, my mouth filled up with it, I was choking.” The “dust” coating her body were known to contain asbestos, silica, benzene, polychlorinated biphenyls, polycyclic aromatic hydrocarbons, volatile organic compounds and metals. In an interview last fall, Borders mentioned that she was having difficulty paying for chemotherapy and necessary medication. It is unclear whether she ever received any federal benefits for her illness. Her portrait, if a symbol for anything, speaks of our ethical obligation to take care of those who suffered on 9/11, while her story demonstrates that fifteen years after the event we are at only the beginning of dealing with a public health problem.

Under the administration of Kenneth Feinberg, Congress distributed seven billion dollars in 2001 to families of those deceased in the attack under the September 11th Victims Compensation Fund. Over the course of the ensuing decade, it became increasingly evident that rescue workers were suffering from respiratory illnesses. As it is often the problem in toxic torts, establishing causation as well as the statute of limitations prevented many from collecting workers compensation. The New York State Legislature responded in 2006 by enacting the World Trade Center Disability Law, which gave first responders the benefit of the doubt. It was no longer necessary for public employees who engaged in rescue, recovery or cleanup to demonstrate that their illness was caused by 9/11 toxins. The State allowed for a presumption that it was the result of their work related activity.

The federal government did not act until 2010, when President Obama finally signed the James Zardoga 9/11 Health and Compensation Act, establishing a system to care for both first responders as well as survivors like Borders. Although cancer was not initially included as a covered illness, the act currently covers about 50 different forms of cancer. Nevertheless, the law is set to expire on October 1st, ending 9/11 related cancer treatment, compensation and research.  The latency period- the time it takes for an illness to develop following exposure, varies from cancer to cancer. Thyroid cancer takes a minimum of 2.5 years to develop, while mesothelioma, which is almost exclusively caused by asbestos exposure, appears an average of 40 years after exposure. About 400 tons of asbestos were used to construct the World Trade Center.

If Congress allows the Zadroga Act to expire, it is compounding tragedy upon tragedy. It is unclear how many people will develop 9/11 related illnesses, but it is our collective responsibility to ensure that they can at the very least afford to pay for their chemotherapy. Congress should renew the Zadroga Act, if not indefinitely, then at least for another twenty years, and moreover give survivors the benefit of the doubt by allowing them to demonstrate causation by a presumption that their illnesses were triggered by 9/11.

This September 11, 2001 photo shows Marcy Borders covered in dust as she takes refuge in an office building after one of the World Trade Center collapsed in New York City. (STAN HONDA/AFP/Getty Images)

Death by Default v. Death by Choice: Should Physician Assisted Suicide be Legal? by Stephanie Lemchuk, Staff Editor, CSL ’17

September 20, 2015

Brittany Maynard, who was suffering from a terminal brain tumor, left her life in California behind and moved to Oregon so that she could die as she pleased. Oregon allows physician assisted death (PAD), so when she, not the disease, was ready she took specially prescribed medication and peacefully ended her life. If you were in her shoes, would you want the same?

Earlier this month, inspired by Ms. Maynard’s “death with dignity” campaign, California’s legislature has approved the End of Life Option Act, known as the “right-to-die bill.” Such laws allow physicians to prescribe life-ending medications to terminally ill patients at their request. New York lawmakers have been advocating for the same law to be brought here. Both Democrats and Republicans have proposed bills which would make PAD legal. The Democrats’ bill, similar to California’s and the Republican bill proposes to protect physicians who write life-ending prescriptions at patients’ requests from prosecution. Currently, assisting death is a felony in New York.

Proponents of the laws raise the moral argument that people have basic rights to autonomy, including the right to free themselves from oftentimes excruciating pain and suffering. The right to free oneself from this suffering is compared to the rights of abortion and to refuse life-saving treatment, which relate to control over the body. Sound-minded people should be able to exercise this right without interference by the government.

Opponents argue that freedom from pain and suffering could be abused by unscrupulous medical professionals. Such bad actors may, for personal reasons, coerce people to choose PAD instead of expensive or complex treatments. They also argue that the Hippocratic Oath goes directly against PAD, as it requires doctors to do whatever necessary to keep their patients alive. Legalizing PAD could lead to a slippery slope where consent from the patient may not even be required if a doctor feels the patient is greatly suffering.

I believe PAD should be legal. Firstly, abuse occurs in every profession. Arguably medical professionals should be held to a higher standard because people’s lives are in doctors’ hands; but, that doesn’t mean a practice that has helped thousands of people should be banned because there’s a possibility it could be abused by a few. Secondly, in order for the slippery slope argument to be valid, the Death with Dignity laws would have to provide exceptions where consent is not required for PAD to be legal. All current laws and proposed bills strictly require consent because otherwise it is murder. For prudential reasons it is unlikely that legislators would pass a bill that in any way waives consent. And finally, providing a patient with means to live his or her life comfortably and happily is providing him or her with the highest standard of care, and therefore squarely within their duty as a doctor under the Hippocratic Oath. Terminal illnesses take away a person’s ability to do many things in life, but PAD lets patients take control of their lives once and for all. Healthy government officials should not be able to trump this powerful choice.

Raising the Age by Enjole Johnson, Symposium Editor, CSL ’16

September 9, 2015

Raising the age of adult criminal responsibility has become a topic of concern in New York.  New York is one of two states that continues to punish juveniles as young as 16 years old in the adult criminal justice system.  Many advocates and legislators have attempted to work together to address the issue.  However, legislators were unable to create a policy addressing the issue during the recent legislative session.  Advocates state that negotiations were made and presented to the Cuomo Administration but not accepted.   Some Senate Republicans believe raising the age will not be a quick process.  Instead they believe discussions need to continue to determine the best way to remove youths under 18 from the adult criminal justice system, such as youth courts and diversion programs.  Both Republicans and Democrats believe that raising the age is an issue that needs to be addressed.

In June, Governor Cuomo stated that he would take Executive Action after legislators were unable to create law to address the issue.  His focus is creating facilities separating juveniles from the adult prison population.  Advocates and legislators however are uncertain what the Executive Action means for youth arrested daily, such as will it apply to county jails or is it limited to prisons? Locally in New York City, Mayor de Blasio has implemented efforts to remove juveniles from Riker’s Island after a lawsuit was filed against the city.  As changes are being made throughout the state, advocates and legislators are hopeful that in the near future they will be able to raise the age.

New York should raise the age of criminal responsibility.  The effects of entering the adult criminal justice system can have daunting impacts on juveniles. Governor Cuomo’s effort to limit the number of juveniles in adult prisons is the first step in addressing this issue. However, the Executive Action will not prevent youths from having a criminal record.  Therefore a criminal record will follow juveniles for the rest of their lives.  These records can have effects on juveniles’ future attempts to obtain jobs, housing, and their right to vote.  These obstacles will likely increase recidivism.  When youths commit crimes there should be efforts to help them turn their lives around and become productive members of society.  Raising the age will hopefully address concerns of youth in the justice system.

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