Comparative and Foreign Law Commons^™

Tearing Down The Great Wall: The New Generation Investment Treaties Of The People's Republic Of China, Stephan W. Schill

Cardozo Journal of International and Comparative Law

The People's Republic of China (PRC or China) has emerged as the world's premier destination of foreign investment in the developing world and is continuously strengthening its position as a source of outward foreign investment, notably in Asia and Africa. In this context, the PRC has concluded over 110 bilateral investment treaties (BITs) that grant protection against expropriation and establish other standards of treatment for foreign investors in China and Chinese investors abroad. While the PRC was originally hesitant regarding international investment protection, the country started, beginning in the late 1990s, entering into new generation BITs that break with her …

The Case For A Flat-Earth Law School, Erik M. Jensen

Cardozo Journal of International and Comparative Law

The essay argues against the increasing emphasis on globalization in legal education, advocating for a return to a focus on American law. It critiques the trend of prioritizing international, transnational, and comparative law, asserting that this shift undermines the foundational knowledge of domestic law necessary for effective legal practice. The author contends that while international law has its place, it should not overshadow the core principles of American law, which remain central to the majority of legal careers.

Selective Prosecution In Russia - Myth Or Reality?, Yelina Kvurt

Cardozo Journal of International and Comparative Law

The note examines the issue of selective prosecution, focusing on the case of Mikhail Khodorkovsky, and argues that the Russian legal system lacks an explicit defense against such practices, which violate constitutional guarantees of equality before the law. It advocates for the adoption of a legal standard to address selective prosecution, drawing parallels with the U.S. legal framework while acknowledging the need to adapt it to Russia's unique judicial context.

Taking The Right To Abortion In Croatia Seriously - One Of The Basic Constitutional Rights Or A Rudiment Of The Right To Reproduction?, Dalida Rittossa

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Domestic Violence And Legal Reforms In Nigeria: Prospects And Challenges, Itoro Eze-Anaba

Cardozo Journal of Equal Rights & Social Justice

The article examines the challenges and prospects of legal reform aimed at addressing domestic violence against women in Nigeria. It highlights the inadequacy of current laws, the cultural and societal barriers that discourage victims from seeking redress, and the need for comprehensive legal and systemic changes to protect women's rights. The analysis emphasizes the importance of addressing economic, cultural, and educational disparities to create a more just and equitable legal framework.

Restorative Justice And The Pre-Conditions For Grace: Taking Victim's Needs Seriously, Ellen Waldman

Cardozo Journal of Conflict Resolution

This essay surveys the question of victim need from a different vantage point. It takes as its starting point the voices of actual victims as recorded by researchers in the field. It reports on three studies and the linkage they uncover between victim distress and attitudes toward justice and reconciliation. What they reveal belies a simple notion of victim need and suggests that restorativists should move warily as they seek to reshape the criminal justice system into more harmony-producing forms. Victim-offender encounters, truth-telling, and moves toward apology and reconciliation are appealing in the abstract; but data suggests that victims whose …

Does Liability Enhance Credibility?: Lessons From The Dmca Applied To Online Defamation, Olivera Medenica, Kaiser Wahab

Cardozo Arts & Entertainment Law Journal

No abstract provided.

French Headscarves And The U.S. Constitution: Parents, Children, And Free Exercise Of Religion, Christina A. Baker

Cardozo Journal of Equal Rights & Social Justice

The note examines the 2004 French law banning conspicuous religious symbols in public schools, highlighting its roots in France's unique secularist tradition (laïcité) and its implications for religious freedom. It contrasts this approach with the U.S., where the First Amendment would likely prevent such a ban, emphasizing the importance of protecting religious liberty to safeguard broader societal freedoms. The analysis underscores the differing legal and cultural frameworks between France and the U.S. in balancing secularism and religious expression.

Anonymity On The Internet: How Does It Work, Who Needs It, And What Are Its Policy Implications?, Eric J. Stieglitz

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Coming Into Compliance With Trips: A Discussion Of India's New Patent Laws, Jeffrey Colin

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Why U.S. Federal Criminal Penalties For Dealing In Illicit Cultural Property Are Ineffective, And A Pragmatic Alternative, Derek Fincham

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Feminist Battle For Citizenship: Between Combat Duties And Conscientious Objection, Daphne Barak-Erez

Cardozo Journal of Equal Rights & Social Justice

The article examines the legal and feminist struggles surrounding women's inclusion in military service, arguing that such inclusion is central to achieving full citizenship and equality. It critiques the differential treatment of men and women in military service, highlighting how legal frameworks perpetuate gendered roles and undermine civic equality. While legal victories like United States v. Virginia and *Miller* have advanced women’s rights, they have not fully dismantled structural barriers to equality. The article emphasizes the tension between feminist goals of equality and critiques of militarism and patriarchal institutions.

Reforming Federal Personal Injury Litigation By Incorporation Of The Procedural Innovations Of Scotland And Ireland: An Analysis And Proposal, Daniel H. Erskine

Cardozo Journal of International and Comparative Law

Federal procedure has embraced the referral of civil cases outside the court system to alternative dispute resolution. This article argues that by utilizing courts to settle cases through civil procedure, courts realize their central role in ensuring the quality of settlements produced through the judicial administration of justice. The purpose of this article is to provide litigants with an optional procedure to expeditiously resolve federal personal injury cases. The system proposed in this article incorporates Scottish and Irish civil procedural reforms into a coherent method for judicial officers to declare the settlement value of a personal injury action without referring …

Barbarians At The Ballot Box: The Use Of Hedging To Acquire Low Cost Corporate Influence And Its Effect On Shareholder Apathy, Jonathan J. Katz

Cardozo Law Review

No abstract provided.

Panel Report: Beyond Article Iii Courts: Military Tribunals, Status Review Tribunals, And Immigration Courts, Robert M. Chesney

Cardozo Public Law, Policy & Ethics Journal

The article explores the tension between national security interests and procedural fairness in the use of secret evidence across non-Article III contexts, including military tribunals, Combatant Status Review Tribunals (CSRTs), and immigration courts. It examines the challenges of balancing government secrecy with individual rights, emphasizing the need for procedural safeguards to navigate this complex issue.

Assessing The Rule Of Law In Russia, Kathryn Hendley

Cardozo Journal of International and Comparative Law

The mainstream scholarly literature and the mass media agree that Russia has made little progress in moving toward the "rule of law." Their negative assessment of the value of law in Russia is buttressed by a recent series of high-profile cases in which the results were clearly manipulated by the Kremlin. This article argues that such cases are aberrations and should not be viewed as reflective of the capacity of the Russian legal system. It documents the profound institutional reforms undertaken over the past two decades. Judged on those terms, it has surely moved closer to the ideal of the …

Rock, Paper, Scissors, Trademark? A Comparative Analysis Of Motion As A Feature Of Trademarks In The United States And Europe, Lesley Matty

Cardozo Journal of International and Comparative Law

Motion trademarks, or motion marks, represent a unique form of nontraditional trademarks that use movement to distinguish goods and services. Despite their recognition in the U.S. and Europe, motion marks face significant challenges in registration and enforcement due to limited case law and unclear protection standards. This note explores the legal and practical complexities surrounding motion marks, advocating for improved registration processes and alternative legal strategies, such as dilution claims, to enhance their protection.

Medical Torture: End Of Life Decision-Making In The United Kingdom And United States, Jon D. Feldhammer

Cardozo Journal of International and Comparative Law

The note examines the legal and ethical challenges surrounding end-of-life medical decisions in the United States and the United Kingdom, highlighting the failure of both countries to effectively implement patients' end-of-life plans. It argues that the current legal frameworks in both nations often lead to prolonged, painful, and futile medical treatments, violating patient dignity and human rights. The analysis critiques the lack of consensus on medical futility and proposes a legislative model to balance patient autonomy, physician discretion, and ethical medical practice.

Interpreting The Wiretap Act: Applying Ordinary Rules Of "Transit" To The Internet Context, Samantha L. Martin

Cardozo Law Review

No abstract provided.

Bad Faith: Race, Religion And The Reformation Of Welfare Law, Richard Hardack

Cardozo Public Law, Policy & Ethics Journal

The article critically examines the cultural, theological, and legal underpinnings of welfare policies in the United States, arguing that these policies are deeply influenced by racialized and gendered stereotypes. It contends that conservative and liberal thinkers alike have framed welfare as a threat to capitalist values, often justifying this stance through theological and postmodernist ideas. The analysis highlights how welfare is constructed as a declaration of dependence, contradicting the ideals of self-reliance and market-driven solutions. The article also critiques the legal system for failing to recognize welfare as a fundamental right, instead treating it as a privilege subject to state …

Justice & Foreign Affairs: Taking The European Neighbourhood Partner Countries To The European Court Of Justice, Lior Zemer, Sharon Pardo

Cardozo Journal of International and Comparative Law

The article argues that the European Union (EU) should extend the jurisdiction of the European Court of Justice (ECJ) to cover disputes arising from agreements with Neighborhood Partner Countries (NPC) under the European Neighbourhood Policy (ENP). This extension is essential for upholding the EU's constitutional principles, ensuring judicial review, and maintaining the coherence of EU external relations. The authors advocate for the ECJ as the most suitable judicial forum to address these disputes, emphasizing its role in reinforcing the EU's legal identity and capacity building.

Who Will Control Frankenstein?: The Korean Chaebol's Corporate Governance, Jeong Seo

Cardozo Journal of International and Comparative Law

In a chaebol, because a dominant family exercises control with only a small equity-holding, a sharp disparity exists between cashflow rights and voting rights. The controller reduces managerial agency costs but creates his own agency costs. Furthermore, the disparity exacerbates the controller's agency costs. Outsider shareholders' voting rights are ineffectual in eradicating this problem. Therefore, external monitoring devices over the chaebol controller are required.

Korea has relied on government regulation-including attempts to change chaebols' ownership structures-to address this problem. Unfortunately, without well-functioning capital markets, the regulation has proved ineffective. As observed in the SK scandal, a market for …

Designs For Immunity: A Comparison Of The Criminal Prosecution Of United States Presidents & Italian Prime Ministers, Brianne Biggiani

Cardozo Journal of International and Comparative Law

The note examines the differing approaches of the United States and Italy in granting criminal prosecution immunity to their leaders, emphasizing the role of institutional strength and historical context. It argues that while the U.S. policy of temporary presidential immunity is justifiable due to its robust checks and balances, Italy's weaker governance structure and history of corruption make similar immunity measures inappropriate. The analysis highlights the importance of tailoring legal frameworks to a nation's specific political and cultural conditions.

Trust Protectors: Who Will Watch The Watchmen?, Gregory S. Alexander

Cardozo Law Review

No abstract provided.

A Brief Comment On Trust Protectors, Jeffrey Evans Stake

Cardozo Law Review

No abstract provided.

Essay For The In-Print Symposium On The Myth Of Moral Justice, Stuart A. Scheingold

Cardozo Public Law, Policy & Ethics Journal

Stuart Scheingold responds to Thane Rosenbaum's The Myth of Moral Justice, agreeing with the aspiration to infuse law with moral imagination but critiquing Rosenbaum's oversight of existing moral energy within the legal profession, particularly through cause lawyering. Scheingold argues that Rosenbaum's approach is overly simplistic, failing to account for institutional obstacles and the contested nature of moral discourse, which can lead to conflict rather than harmony. He emphasizes that while moral advocacy, as seen in cause lawyering, can drive positive change, it also faces significant challenges and backlash.

Judicial Balancing In Times Of Stress: Comparing The American, British, And Israeli Approaches To The War On Terror, Michel Rosenfeld

Cardozo Law Review

No abstract provided.

"Never Again" Promise Broken Again. Again. And Again., Kelly Dawn Askin

Cardozo Law Review

No abstract provided.

Land Conflict Management Under A Tree Cropping System: The Case Of Theobroma Cacao In Southwestern Nigeria, E. O. Idowu

Cardozo Journal of Conflict Resolution

General observation and systematic research have consistently indicated that a sizeable portion of farmlands within the cacao growing communities of southwestern Nigeria is tenant-operated. This article will focus primarily on a specific study area within Southwestern Nigeria. Within the study area, the cultivation of cacao, mainly for export, is of primary importance to the farmers. Economic and social activities revolve around the crop with annual festivals and ceremonies held during the periods immediately after the annual sale of the crop. Until 1985, the study area produced about 40% of total Theobroma cacao (cacao) output for southwestern Nigeria. This share has …

Promotion Of International Commercial Arbitration And Other Alternative Dispute Resolution Techniques In Ten Southern Mediterranean Countries, Giuseppe De Palo, Linda Costabile

Cardozo Journal of Conflict Resolution

As the strategic economic partner of the Southern Mediterranean (MEDA) region, the European Union (EU) seeks to promote effective mechanisms of development through increased industrial cooperation in order to create a Euro-Mediterranean area of shared prosperity. The first Euro-Mediterranean Conference of Ministries of Industry, held in June of 1996 in Brussels, listed among its priority objectives 1) the formation of a fair judicial and administrative framework for investment; and 2) the establishment and support of Small and Medium Enterprises (SMEs) through the development of regional networks. However, recent reports on world trade and investment describe the MEDA region as an …