Insular Cases and Unequal Constitutional Footing for U.S. Territories

Dyan Gershman is a New York City attorney who specializes in corporate law and provides her clients with legal advice and support in their M&A activities, intellectual property and technology licensing efforts and in commercial contract drafting and negotiation. Active with the New York City Bar Association (NYCBA), Dyan Gershman is part of an organization that offers the program “U.S. Territories: Separate and Unequal.”

This NYCBA program delivers an overview of U.S. territories and their political status, with a particular focus on how the territorial “incorporation doctrine” and Insular Cases have generated political and economic conditions that are inequitable and without fair distribution of power and wealth.

The Insular Cases go back to the start of the 20th century and the United States (following the Spanish American War of 1898) taking over geographically disparate territories, including the Philippines, Guam, and Puerto Rico. From 1901 to 1922, in a series of Supreme Court decisions, a territorial incorporation doctrine was developed. Without constitutional grounding, this split U.S. territories into the two categories: the incorporated and the unincorporated.

The incorporated were described as destined for statehood from the time of acquisition. As such, territories such as Alaska and Hawaii had rights enshrined in the Constitution fully applied to them. On the other hand, territories not anticipating statehood remained unincorporated, such that the Constitution did not fully apply. Over the years, this doctrine has been used to deny citizenship, equal benefits, and other protections to residents of such territories.

NYCBA Calls for Increase in Attorney for the Child Office Funding

Guiding Gershman Law, PLLC, Dyan Gershman provides business law services encompassing complex commercial contracts, mergers and acquisitions, and corporate governance. Dyan Gershman maintains an active presence in the New York City Bar Association (NYCBA), which advocates for a number of issues vital to the legal community and the public.

In April 2023, the NYCBA raised concerns about insufficient levels of state funding for civil and immigration legal services, as well as for Attorney for the Child (AFC) offices. Unfortunately, AFC budgets have been flat for nearly two decades, with little if any adjustments for inflation and cost of living index increases. There is also a persistent issue of lack of pay parity for AFC work, as compared to other state-funded legal offices. With resignations outnumbering new hires, fewer and more modestly compensated attorneys are handling a greater number of cases than ever before.

AFC offices have an exceptionally important role in civil society, as they provide more than 90 percent of the legal representation children receive in family courts across municipalities such as New York City. Addressing issues of manageable caseloads and fair compensation is of vital importance in ensuring equal access to justice and racial equity. Claimants from underserved communities are particularly reliant on access to free, court-assigned legal counsel and have few options beyond what the court provides them.

The “Fed Pro” Program of the New York City Bar Justice Center

An established New York City corporate attorney, Dyan Gershman directs Gershman Law, PLLC, where she delivers counsel in areas such as complex contracts, joint ventures and M&A across a wide range of industries. Dyan Gershman is committed to community service, and one of her areas of focus is supporting the needs of the underserved, from recent immigrants to those without homes, through the NY City Bar Justice Center.

A vital initiative of the center is the Federal Pro Se Legal Assistance Project (Fed Pro). This program delivers limited-scope legal services to pro se litigants, who are defined as those who represent themselves in federal court civil cases (often because they can’t afford an attorney). Litigants in these types of cases (that only they can bring forward within federal court) are not provided with free legal representation as a constitutional right (though representation may be granted in rare cases).

Fed Pro fills this gap by providing brief legal counseling and advice on potential federal claims before the suits are filed. Volunteers also interpret for clients and explain the procedures and rules surrounding various aspects of federal law. Pro bono volunteers review draft pleadings, and correspondence with the court may also be established.

The Fed Pro program is administered on site at the Brooklyn courthouse of the Eastern District of New York. The types of issues handled include those involving civil rights and employment and disability discrimination. While civil claims arising in the city’s other boroughs may also be handled, there is no assistance provided to incarcerated litigants at present.