Comparative and Foreign Law Commons^™

Human Rights, Trans Rights, Prisoners’ Rights: An International Comparison, Tom Butcher

Northwestern Journal of Law & Social Policy

In this Note, I conduct an international comparison of the state of trans prisoners’ rights to explore how different national legal contexts impact the likelihood of achieving further liberation through appeals to human rights ideals. I examine the United States, Canada, the United Kingdom, Australia, India, Argentina, and Costa Rica and show the degree to which a human rights framework has been successful thus far in advancing trans prisoners’ rights. My analysis also indicates that the degree to which a human rights framework is likely to be successful in the future varies greatly between countries. In countries that are hesitant …

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in the age of the "vanishing trial," in circumstances where adjudication on the merits of the case in question has been replaced by the promotion ofjudicial settlement.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 …

How Private Enforcement Exacerbates Climate Change, Anna A. Mance

Cardozo Law Review

Private enforcement-the practice of allowing private actors to directly enforce statutes or regulations-has been a fixture of environmental law for the last fifty years. In the absence of comprehensive climate legislation, climate change has been brought under the fold of the environmental regime and its emphasis on private enforcement. Yet climate change presents a distinct global challenge from those harms that the 1970s environmental regime was designed to address. This Article investigates how private enforcement is limiting our ability to respond to the crisis of climate change. The central claim is that private enforcers are using the mantle of environmental …

Battling Batson: State V. Andujar And New Jersey's Efforts To Fix A Broken Doctrine, Eli Shahar

Cardozo Law Review

No abstract provided.

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.

Clean Air For All? An Analysis Of Eu Air Pollution Legislation And Health Inequality, Bonnie Nolan

The International Law Review Association Student Forum

Communities around the world face health risks due to air pollution. These health risks can include asthma, cognitive impairment, and even death. But these negative health effects are not equally spread among communities. Studies have established that air pollution affects socially disadvantaged areas more. The correlation between socioeconomic levels and increased risk of environmental harm is referred to as environmental inequality. The World Health Organization has found that environmental health inequality occurs in every European Union (EU) member country. The EU has implemented multiple pieces of legislation to reduce air pollution, including Directive 2008/50/EC, which sets specific air quality that …

The Creating Helpful Incentives To Produce Semiconductors (Chips) And Science Act: What It Means For The Unite D States Economy And Its Foreign Relations, Wesley Davis

The International Law Review Association Student Forum

The Creating Helpful Incentives to Produce Semiconductors (CHIPS) and Science Act represents a growing domestic and international policy interest in the production/manufacture and procurement of semiconductors. While the United States has historically led the world in advanced semiconductor development, an astounding majority of advanced semiconductors used in artificial intelligence and supercomputers are now produced abroad, namely Taiwan. As COVID-19 crippled global supply chains and tensions between the People’s Republic of China and the United States have grown, the Biden Administration passed the CHIPS Act to incentivize foreign and domestic semiconductor producers to build factories stateside. While the promise of multimillion …

Nfts: How Nonfungible Tokens Fit Into Preexisting Regulatory Policies Globally Analysis Of The Legal Implications, Mary Katherine Nix

The International Law Review Association Student Forum

Nonfungible tokens (NFTs) represent the latest and perhaps most controversial form of cryptocurrency. Due to their unique nature and ability to implicate multiple legal rights, it is unclear how NFTs should or can be regulated. The lack of regulatory guidance globally has caused some investors to avoid them at all costs and issuers, advisers, and purchasers of NFTS at risk of litigation. But creating a new regulatory framework for this new form of crypto could take years. As such, countries should mold NFTs into existing cryptocurrency framework.

Paradigma Model Legislasi Dan Tujuan Penguatan Sistem Presidensial Republik Indonesia, Aldi Yoga Hartama

Jurnal Hukum & Pembangunan

One of the five basic agreements in the constitutional amendment is to strengthen the presidential system. However, the legislative practices that have been running so far tend to move away from the character of legislation in the presidential system itself. This paper tries to suggest the dynamics of the legislative model that runs after the 2002 constitutional amendment. At the same time, it will discuss how the legislative process should be carried out in a presidential system of government and its comparison with the legislative process in a parliamentary system of government.

Kepastian Hukum Penyelesaian Sengketa Dengan Klausula Arbitrase Di Mahkamah Agung, Devianty Fitri, Almaududi Almaududi

Jurnal Hukum & Pembangunan

Settling disputes in court can be a time-consuming and exhausting process. Therefore, the availability of arbitration as an Alternative Dispute Resolution (ADR) is one of the efforts to achieve faster solutions and dispute resolutions. However, in some cases in the Supreme Court, there are disputes that contain arbitration clauses in the agreement, yet they are still submitted to court and decided by the court. This research aims to examine the disappearing in-depth study of legal certainty in dispute resolution with arbitration clauses by analyzing several verdicts. The method used in this study is normative juridical with a legislative and case …

Strategi Burden & Salvage: Formula Yuridik Untuk Terapi Doktrinal, Phobia Pajak Karbon, Herman Bakir

Jurnal Hukum & Pembangunan

This text introduces the burden & salvage doctrine, a formula providing an alternative path to develop a solid lex specialis within the realm of Pigouvian tax. It promotes a type of “juridical therapy” for the Indonesian government to overcome their excessive “fear” of carbon taxes, which had led them to surrender and revoke the program until the end of President Joko Widodo’s tenure Method: Data was gathered online using the World Wide Web’s search features to their fullest potential. Findings: Carbon tax should ideally be established by the legislation of the lex specialis type, characterized by the burden and salvage …

Efektivitas Pelaksanaan Pemberian Pendidikan Formal Bagi Anak-Anak Pengungsi Luar Negeri Di Kota Batam, Rina Shahriyani Shahrullah, Heru Susetyo, Lu Sudirman, Rendi Sahputra

Jurnal Hukum & Pembangunan

The entire responsibility for all children in Indonesia lies with the government, and it extends to all children in Indonesia, not only those who are Indonesian nationals but also includes children who are refugees from foreign countries. One of the fundamental rights regulated by the laws and the Convention on the Rights of the Child ratified by Indonesia is the right to receive appropriate education (formal, non-formal, and informal education). This research aims to analyze the implementation of formal education fulfillment for refugee children in Batam City, especially those accommodated at Hotel Kolekta. Therefore, the research questions are as follows: …

Pelestarian Ekosistem: Urgensi Pengaturan Sanksi Pemulihan Bagi Spesies Dalam Kejahatan Terhadap Satwa Liar, Britha Mahanani Dian Utami

Jurnal Hukum & Pembangunan

Law Number 5 of 1990 concerning the Conservation of Natural Resources and Ecosystems has never been revised while the development of science and technology has influenced a paradigm shift in the protection of biodiversity. The proposal of Commission IV of the House of Representatives to propose a revision of Law Number 5 of 1990 was approved in the Plenary Session as a 2021 Priority Bill. However, in the draft Biodiversity Conservation Bill, recovery is still oriented towards the recovery of the area, while not yet regulating recovery for species that are victims of crime. This paper argues that the regulation …

Pandangan John Finnis Mengenai Hukum Yang Tidak Adil, Petrus Ckl Bello

Jurnal Hukum & Pembangunan

Contemporary natural law thinker John Finnis in his book Natural Law and Natural Right published in 1980 differentiates between legal obligations and moral obligations. According to Finnis, legal obligations cannot change, while moral obligations can change, in the sense that when it comes to unjust laws, only the moral obligation to obey the unjust law is extinguished, while the legal obligation to obey the unjust law remains and is binding. For Finnis, natural law theory does not focus on the view that the law is wrong or against moral principles that cannot be called law (lex injusta non est lex), …

Queer Liberation Under International Law, Cardozo Journal Of Equal Rights And Social Justice, Cardozo International & Comparative Law Review, Cardozo Outlaw

2023 Event Invitations

This symposium will equip attendees with an understanding of how global movements, including activists, lawyers, scholars and organizations, navigate and employ international law in pursuit of queer liberation.

Adopting an intersectional feminist framework, this symposium is an acclamation for queer justice everywhere. Introduced by Dean Melanie Leslie, this symposium will explore how international law may subjugate or protect queer populations, how domestic efforts interact with international law and how constitutional laws and international law must evolve for exhaustive social justice.

Always A Suspect: Law Enforcement’S Use Of Location History Data In Criminal Investigations, Aaron A. Bengart

Cardozo International & Comparative Law Review (CICLR) Blog

Imagine taking your dog on a walk around the neighborhood or visiting an ill parent in a nursing home and suddenly being considered a prime suspect in a serious criminal investigation. This has happened to a multitude of people over the past few years as law enforcement has increasingly used Location History data to identify perpetrators of criminal activity in every US state. For example, Zachary McCoy found himself as a suspect in a local home invasion simply for riding his bike past the house at issue multiple times on the day of the invasion. Consequently, Mr. McCoy felt obligated …