Comparative and Foreign Law Commons^™

Corruption And Judges' Personal Independence In The Judiciary Of Bangladesh: One Bad Apple Can Spoil The Bunch, S M. Solaiman

Cardozo International & Comparative Law Review

Corruption appears to have been an inexorable crime in Bangladesh for decades. More deplorably, the magnitude of judicial corruption has profoundly increased the miseries of litigants. The situation is so awful that the nation's two successive Attorney Generals have publicly raised the issue to two consecutive Chief Justices of Bangladesh at their felicitation gatherings organized by lawyers of the Supreme Court of Bangladesh soon after their appointments as the nation's top judges. Consistently, empirical findings of Transparency International, a German-based organization, and Transparency International Bangladesh have unequivocally revealed the practice of a large extent of judicial corruption. These allegations are …

Table Of Contents - Cardozo International & Comparative Law Review, Vol. 6, Iss. 3

Cardozo International & Comparative Law Review

No abstract provided.

A Comparative Case Against Criminalizing Ip Infringements In The Uk And China, Dennis J. Baker, Xiaoxiao Wang

Cardozo International & Comparative Law Review

In this Article, it is argued comparatively that across the world intellectual property rights have been expanded to the point of absurdity. Beyond lengthy monopoly protections being backed up with prison sentences of up to ten years in both China and the UK, these monopolies have been extended in the UK to cover vague concepts such as publicity rights and performance rights. It is argued that due to the incredible lobbying power of Western multinational corporations, China was railroaded into enacting Western-style offenses in order to join the WTO. It is submitted that numerous economic studies have shown that intellectual …

Power And Persuasion In The Courtroom: The Force Of Law And The Settlement Dynamics Of Judges, Hadas Cohen, Michal Alberstein

Cardozo International & Comparative Law Review

This Article seeks to describe the shift in the legitimation of judicial authority in the age of the "vanishing trial," in circumstances where adjudication on the merits of the case in question has been replaced by the promotion ofjudicial settlement. Based on data collected during a five-year study funded by the European Research Council ("ERC") and drawing from studies in social psychology and conflict resolution, we analyze the judicial conflict resolution practices used in Israel's Magistrate Court in Tel Aviv to promote settlement, and from this depict a new taxonomy of power relations in the courtroom. This move, from adjudication …

Table Of Contents - Cardozo International & Comparative Law Review, Vol. 6, Iss. 2

Cardozo International & Comparative Law Review

No abstract provided.

Palestinian Women And Housing Laws In Israel: A Case Study Of Legal And Epistemic Injustice, Yael Cohen-Rimer

Cardozo International & Comparative Law Review

This Article is built on a legal metaphor. In criminal law, we discuss whether an actor has the mens rea for a crime. I argue in this paper that judicial review of cases related to rights infringements involve a similar inquiry. In applying discrimination laws, courts actually, though sometimes not explicitly, search for anything between intent and awareness. In administrative law, courts search for indications of the negligence of the administrator. I use the test case of Palestinian women and Israeli housing aid rules to show where these legal practices fall short in treating the core problem. I analyze this …

Sonderkommando In Canada: Canada's First World War Ii War Crimes Trial, 1951-56, Joseph Kary

Cardozo International & Comparative Law Review

The article examines the 1950 trial of David Zimet, a Jewish policeman in the Tarnów ghetto, held in Montreal by the Canadian Jewish Congress, highlighting the strengths and weaknesses of community tribunals in addressing war crimes. It explores the moral and legal complexities of collaboration during the Holocaust, the challenges of survivor testimony, and the broader implications for postwar justice and communal accountability.

Production And Global Dissemination Of Chinese Legal Ideology: Implications For The Study Of Illiberalism, Samuli Seppänen

Cardozo International & Comparative Law Review

This Article discusses the production and global dissemination of Chinese legal ideology and considers its implications for the study of illiberalism. The leaders and ideologues of the Chinese Communist Party profess an interest in increasing the impact of its social sciences and governance ideology in foreign countries. On its face, this project amounts to an ambitious, even radical, ideological challenge against liberal legal thought. Nevertheless, these attempts can also be seen to highlight various challenges that illiberal regimes face in ideological production and advocacy. First, the domestic priorities of illiberal ideological speech may not support ideological advocacy efforts in foreign …

Learning From Guantanamo: Avoiding Legal Black Holes In Outer Space, Mia Bonardi

Cardozo International & Comparative Law Review

"Legal black holes" are spaces beyond the reach of enforceable law and thus inflict people within their pull with "rightlessness." The term "legal black hole" arose originally around the Guantinamo Bay detention center, but it has since been used in other contexts, such as migrant drownings. There is a new frontier for legal black holes in the space beyond Earth. This topic is timely and pertinent to modern application because if places or spaces exist where fundamental laws cannot be applied or enforced, then such legal black holes undermine the rule of law.

This Article argues that outer space is, …

Should I Stay Or Should I Go: The Evolution Of Emergency Arbitration Procedure Within Private International Law, Katarina Resar Krasulova

Cardozo International & Comparative Law Review

The emergency arbitration procedure is widely and ever increasingly used by parties around the world. Because of that, the main question in the past decade has shifted from whether emergency arbitration will endure, to how it is that emergency proceedings became a fixture of international arbitration despite a body of academic literature that doubted its viability. Answering this question, this Article shows that the international arbitral rules have evolved in response to parties' demands and concerns, and this evolution contributed to the procedure's popularity. The Article then discusses how emergency arbitrators, legislators, and national courts devised solutions to problems relating …

Loss Causation By Statutory Presumption: Event Studies And The Korean Securities Litigation, Joon Buhm Lee

Cardozo International & Comparative Law Review

In the United States, event studies are ubiquitous in securities fraud litigations. This is not so, in South Korea (hereinafter referred to as "Korea"). Unlike the United States where event studies in a securities fraud class action may even be conducted twice to show both reliance and loss causation, they are far less frequently used in Korean securities litigations, even though the Supreme Court of Korea (the "SCK") explicitly allowed the use of an event study in a securities fraud context.

This Article aims to make two contributions. First, it shows that, even though the SCK allowed the use of …

Gender Registration And International Law: Are Gender Markers Necessary?, Mika D'Angelo

Cardozo International & Comparative Law Review

The note critically examines the necessity and implications of gender markers on identification documents under international law, arguing that current practices disproportionately burden transgender and gender-diverse individuals. It contends that the registration of gender often fails to align with international human rights standards, perpetuating discrimination and administrative violence. The analysis advocates for a reevaluation of gender registration to ensure it respects self-determination and privacy rights while addressing practical concerns.

Lipstick & The Law: An Exploration Of The American And French Statutory Protections Against Makeup Mandates In The Workplace, Kira Dennis

Cardozo International & Comparative Law Review

The note argues that the U.S. legal system, particularly Title VII, fails to adequately protect employees from discrimination based on physical appearance, such as grooming policies. It advocates for adopting a framework similar to France's DDD, which offers more comprehensive protections, to address these gaps and promote gender equality.

Tracing Heritage: Addressing Cultural Property Crime Through Recordation On The Blockchain, Richard De Schweinitz

Cardozo International & Comparative Law Review

No abstract provided.

An Examination Of U.S. And U.K. Procedures Governing Sexual Misconduct Investigations In Universities, Marc Siegel

Cardozo International & Comparative Law Review

The note critiques the lack of a unified regulatory framework for addressing sexual misconduct in U.K. universities, contrasting it with the structured, albeit controversial, Title IX system in the U.S. It argues that the U.K.'s voluntary approach has led to inconsistent, unjust outcomes and advocates for the adoption of a comprehensive regulatory regime similar to Title IX to ensure fairness, accountability, and consistency in handling such cases.

Integrating Cultural Property Law Doctrine Into The Nazi-Looted Art Restitution Legal Framework, Julia Vastano

Cardozo International & Comparative Law Review

The note examines the integration of cultural property law principles into the legal frameworks for restitution of Nazi-looted art, focusing on a comparative analysis of Dutch and U.S. policies. It highlights the Netherlands' progressive shift in 2021 toward a more claimant-friendly approach, incorporating cultural property doctrine, and contrasts this with the U.S. system, which remains rooted in personal property law. The note advocates for adopting a similar mixed framework in the U.S. to enhance justice for Holocaust victims' heirs.

The Hague Convention On International Parental Kidnapping: Still The Best Hope For Children?, Katherine Jenkins

Cardozo International & Comparative Law Review

The Hague Convention on the Civil Aspects of International Child Abduction remains the most effective legal mechanism for resolving international parental kidnapping cases, but it requires significant reforms, particularly to address issues related to domestic violence and its impact on victims and children. While the Convention has facilitated the return of thousands of children, its failure to adequately acknowledge and protect domestic violence survivors has led to unintended consequences, undermining its effectiveness and deterring some countries from joining.

Masthead - Cardozo International & Comparative Law Review, Vol. 6 (2022-23)

Cardozo International & Comparative Law Review

No abstract provided.

Lives In The Balance: Targeting And Civilian Comparative Value, Christopher F. Melling

Cardozo International & Comparative Law Review

When United States commanders want to attack lawful targets, they must decide if the attack is proportional under the Law of Armed Conflict ("LOAC'). The attack cannot cause excessive harm to civilians compared to the strike's military benefit. To help commanders decide if the strike is proportional, intelligence analysts forecast the number of men, women, and children who may be injured or killed as collateral damage. Yet because civilians are not equal for the purpose of targeting, commanders have no viable standard for evaluating the limited, homogenous data they receive on civilians. Commanders should have more information to help them …

Table Of Contents - Cardozo International & Comparative Law Review, Vol. 6, Iss. 1

Cardozo International & Comparative Law Review

No abstract provided.

The Debate Surrounding The Company Purpose In The Post-Pandemic Age, Leon Anidjar

Cardozo International & Comparative Law Review

The recent COVID-19 pandemic crisis produced many creative responses to confront its adverse results. Many companies worldwide were required to adopt innovative thinking by altering their business activities and revising their entire supply chain by attracting different types of resources delivered by various stakeholders. This Article explores the implications of this fundamental change on central theoretical assumptions of corporate governance. It articulates a new stakeholders-resources theory that explores governance norms as part of the firm's quest for inputs required to generate a competitive advantage. It applies this analytical framework in the debate on corporate purpose. This Article argues that companies …

The Law And Finance Of Infrastructure Investment, Daisuke Asaoka

Cardozo International & Comparative Law Review

Institutional design facilitates the investment of private capital in infrastructure. The Article deals with concessions, which have been a major format for infrastructure privatization in Japan since their legislation in 2011. It argues that the Japanese government, faced with mounting public debt, walks a thin line between attracting private capital and securing public interest in infrastructure under private operation. By comparing concessions with stock sales, the mainstream form of privatization until the legislation, the Article shows that while concessions have advantages in terms of economics and public interest control, they may hinder the strategic growth of private enterprises by limiting …

Natural Resource Governance In Qing China: Lineage Institutions And The Making Of Common Property Regimes, Jason Jia-Xi Wu

Cardozo International & Comparative Law Review

Historically, common property is one of the dominant forms of ownership through which natural resources-e.g., forests, pastures, and fisheries-are managed. However, their decline across societies due to marketization and privatization has prompted intense debates. This Article seeks to answer the following questions: (1) Why did some common property regimes dissipate quickly, while others resisted the forces of privatization for generations? (2) What explains the divergent trajectories that societies took in governing common resources? Building on the classic Coasean and Demsetzian law-andeconomics principles, this Article highlights two additional dimensions-institutional capacity and social embeddedness of propertyto explain how "hidden" social costs impacted …

Sanctions, Financial Regulation, And Crypto In Latin America, Camilla Oliva

Cardozo International & Comparative Law Review

The note examines the intersection of corruption, financial regulation, and cryptocurrency in Latin America, arguing that U.S. sanctions and the lack of effective financial regulation have inadvertently enabled corruption in the region. It explores how cryptocurrencies, while offering potential solutions to financial instability, are also exploited by corrupt actors and governments to circumvent sanctions and regulatory frameworks. The analysis highlights the dual role of cryptocurrencies as both a tool for financial inclusion and a means of evading accountability, particularly in countries like Venezuela and El Salvador.

A Comparative Look At The Response To Organized Crime In The Ports Of New York-New Jersey And Vancouver, Julia Pjevach

Cardozo International & Comparative Law Review

The note examines the influence of organized crime in ports, focusing on the Port of New York/New Jersey and the Port of Vancouver. It highlights the effectiveness of the Waterfront Commission of New York Harbor in reducing crime through centralized regulation and contrasts it with Vancouver's decentralized approach, which lacks a unified policing mechanism. The analysis underscores the need for stronger regulatory measures and adaptive strategies to combat evolving criminal activities in both ports.

Solitary Confinement: What The United States Can Learn From England And Norway, Markus Wieshofer

Cardozo International & Comparative Law Review

The note argues that the United States should reform its solitary confinement system by adopting key aspects from England and Norway, such as robust oversight mechanisms and a rehabilitative focus, to address the harsh conditions and negative effects of solitary confinement on inmates.

Human Dignity As A Chameleon, Ariel L. Bendor, Michal Tamir

Cardozo International & Comparative Law Review

This article offers an innovative argument, according to which courts do not interpret human dignity according to an abstract theoretical position on the nature of the value only, nor subordinate themselves to the subjective purpose of the drafters of a constitution. Thus, courts-whether in the United States, where human dignity is not explicitly mentioned in the Constitution, or in countries where the right is constitutionally enshrined, such as Germany, South Africa, and Israel-interpret and apply human dignity on the basis of the entirety of the provisions of the particular constitution. Human dignity serves as a constitutional chameleon in the sense …

Table Of Contents - Cardozo International & Comparative Law Review, Vol. 5, Iss. 3

Cardozo International & Comparative Law Review

No abstract provided.

A Sheep In Wolf's Clothing: Assessing The Dangerous, Hidden, And Increasing Defects Of The Iran Nuclear Agreement Review Act, David S. Jonas, Erielle Davidson

Cardozo International & Comparative Law Review

The article critically examines the Iran Nuclear Agreement Review Act (INARA) of 2015, arguing that while it was intended to enhance congressional oversight of the Joint Comprehensive Plan of Action (JCPOA) and other agreements with Iran, INARA falls short of its goals. The analysis reveals that INARA is poorly drafted, lacks teeth, and fails to provide meaningful transparency or checks on executive power, ultimately undermining Congress's role in national security matters.

Getting To Phi: The Case For Excusatory Derogations From Iccpr Rights, Benjamen F. Gussen

Cardozo International & Comparative Law Review

This Article highlights the need for excusatory derogations from human rights. Currently, there is exclusive reliance on justification when upholding derogations from International Covenant on Civil and Political Rights ("ICCPR ) rights. In contrast, an excusatory derogation accentuates the requisite international policy intervention to assist national and subnational governments toward a proportional response to public emergencies. The right to mobility under the ICCPR, and its renditions in the constitutions of Australia and Canada, are used to illustrate this proposition. Border closures in response to the coronavirus pandemic provide context to elucidate how different types of public emergencies dictate different approaches …