Military, War, and Peace Commons^™

The Trump Administration’S Theory Of Constitutional War Powers: “The President Could Decide”, Rebecca Ingber

Online Publications

President Donald Trump has launched another unlawful war, this time in the service of regime change in Iran. The administration has been threatening the use of force for weeks, but provided very little public justification, description of what the president hoped to accomplish, or explanation for how the use of force would effectuate such goals. It has also to date presented no legal justification whatsoever. Much of what we know at this moment about how the administration views, and how it lawyers, questions of war powers can be derived from the one legal memorandum the administration has released on the …

What Are “Wartime Authorities” And When Can The President Use Them? An Expert Q&A, Tess Bridgeman, Rebecca Ingber, Scott Roehm

Online Publications

The first several months of President Donald Trump’s second administration have been marred by the chaotic and often unlawful use, or threatened use, of wartime and terrorism-related authorities for what are essentially domestic immigration or criminal law enforcement purposes. This is not the first time a president has sought to push the boundaries of his wartime powers, or outright claimed those he did not have, but it may well be the most extreme. Indeed, Trump’s reliance on wartime authorities in contexts entirely divorced from armed conflict, or even the threat of force against the United States, puts the country on …

Judicial Deference And Presidential Power Under The Alien Enemies Act, Rebecca Ingber

Online Publications

On March 15, 2025, President Donald Trump issued a proclamation titled, “Invocation of the Alien Enemies Act Regarding the Invasion of The United States by Tren De Aragua.” In purporting to invoke the Alien Enemies Act, Trump resurrected a 1798 statute that grants the President extraordinary removal powers in times of “declared war” or “invasion or predatory incursion … against the territory of the United States by any foreign nation or government.” Specifically, this wartime power permits the President to apprehend and remove as “alien enemies” the non-U.S. citizen nationals of the foreign state, as long as they are fourteen …

P*Law 2025, Center For Public Service Law

2024–2025 Flyers

This document outlines the full schedule for Cardozo Law School’s 2025 P*LAW Week, hosted by the Center for Public Service Law. Held from January 27 to January 30, the week featured a variety of panels, workshops, and student-led presentations on topics such as reproductive justice, housing, LGBTQ+ immigration, international human rights, labor law, and social justice. Events included guest speakers from leading advocacy organizations, mock interviews, and internship prep sessions, all designed to engage students in public interest law and foster professional development.

The Abuse Of Neutrality, Rebecca Ingber

Articles

Neutrality law is a musty and obsolete body of international law that nevertheless rears its creaky head now and again in dangerous ways, most recently in the Russia-Ukraine conflict. The law of neutrality is a study in contradictions. It is obsolete yet remains on the books in treaties and military manuals. It purports to keep the peace and protect non-warring states yet today is invoked to expand conflict and protect aggressors. The legal benefits of neutrality have been entirely overtaken by other regimes. And yet neutrality law has not lost its luster despite losing its value. Instead of letting it …

Law, Conflict, And Hybrid Warfare: A Teaching Imperative For A Changing World, Cynthia Alkon, Andrea K. Schneider

Articles

Lawyers increasingly find themselves at the frontlines of the battlefield, just not in the traditional sense. Hybrid warfare is a conflict form that combines traditional military offensive measures with nontraditional methods, including the harnessing of legal systems to achieve strategic goals. Lawyers have always been at the frontline of typical legal risk assessment, thinking about a client's risk of liability or regulation costs generally. Now, lawyers must stand at the ready for a lot more: lawyers must be prepared for cyber-attacks, disinformation campaigns using artificial intelligence, the use of court systems to suppress reporting or shield bad actors, and so …

The Thin Red Line: Neutrality And Belligerency In Modern Conflicts, Thibault Moulin

Cardozo International & Comparative Law Review

Since the invasion of Ukraine, Western states have faced a dual red line, i.e., at what point neutrality loss and co-belligerency occur. In this Article, I argue that neutrality law is still relevant regarding arms transfers and troop training, which are prohibited, but is often ill-suited to regulate activities like intelligence sharing, which is not subject to a specific treaty or customary rule. As this Article argues, this is because "impartiality" cannot be described as an abstract and autonomous rule, but rather as an umbrella principle underpinning the law of neutrality. It means that helping a belligerent is not ipso …

Enhancing Fairness And Compassion In Military Disciplinary Proceedings, Rinat Kitai-Sangero

Cardozo International & Comparative Law Review

This Article critically assesses the disciplinary proceedings carried out by judicial officers within the military, shedding light on the absence of crucial procedural guarantees, such as the right to legal representation and an impartial judge. After comparing the Israeli disciplinary proceedings with the Summary Court-Martial system in the United States and considering arguments used to justify the lack of procedural guarantees, the Article emphasizes the emotional distress experienced by soldiers who feel powerless due to power imbalances with their commanders and the severity ofprison sentences they may face. While the Article primarily focuses on the Israeli army, its main arguments …

Privacy Shield 2.0—A New Trans-Atlantic Data Privacy Framework Between The European Union And The United States, Sara Gerke, Delaram Rezaeikhonakdar

Cardozo Law Review

This Article is the first to thoroughly examine the new adequacy decision for the Trans-Atlantic Data Privacy Framework (also known as “Privacy Shield 2.0”), including the relevant events and milestones ultimately leading to its adoption. The European Commission adopted the new Privacy Shield on July 10, 2023, to restore transatlantic data flows and commercial exchanges between the European Union and the United States. This Article first explores the holdings of the Court of Justice of the European Union in the groundbreaking cases Schrems I and Schrems II and elaborates on the reasons for the invalidation of the Safe Harbor Decision …

Applying Militant Democracy To Defend Against Social Media Harms, Neil Netanel

Cardozo Law Review

Social media inflict multiple harms on liberal democracy. Online platforms thrive on propagating emotionally inflammatory content that maximizes user engagement. Too often that entails amplifying disinformation, hate speech, online extremism, and deep-seated partisan animosity. Tellingly, as documented in testimony before the House Select Committee to Investigate the January 6th Attack, in the weeks following the 2020 presidential election, Facebook, Twitter, YouTube, and Reddit knowingly enabled a firestorm of vitriolic far-right election denial on their platforms. In so doing, a Select Committee staff report concludes, the platforms “helped to facilitate the attack on January 6th.”

Adjudicating Algorithms: Accountability In Regulation Of Surveillance, Privacy, And Discrimination, Peter Margulies

Cardozo Law Review

The movement for accountable algorithms has attained critical mass. That momentum includes a range of areas where the collection of data plays a key role, including privacy, online disinformation, surveillance, and screening for credit, housing, employment, and government benefits. For example, the White House has released an Artificial Intelligence (AI) Bill of Rights that outlines standards and recourse for a host of AI applications that touch human needs and endeavors. Assessments, disclosure, and procedures for filing complaints about abuse are frequent features in this turn toward accountability. However, at least in the United States, accountability is still a set of …

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, …

How To Undermine A Nation-State In 120 Days: Mediation And Negotiation In A Hybrid Warfare World, Christopher A. Corpora

Cardozo Journal of Conflict Resolution

The original and admittedly provocative title for this essay was "How to Take Down a State in 120 days" and the original November 2022, 20-minute presentation at Cardozo Law School was so titled. The intention behind the provocations was to demonstrate the speed of growing investment in and multi-disciplinary nature of the current hybrid war threat. We have not yet witnessed many state takedowns through this form of warfare; but we have seen states significantly undermined and captured in timelines almost as aggressive as the title suggests. We have seen authoritarian states and criminal organizations significantly weaken more vulnerable states, …

Introduction: Negotiation Strategies For War By Other Means, Chris Honeyman, Andrea Kupfer Schneider

Cardozo Journal of Conflict Resolution

We are delighted to introduce the topic of hybrid warfare into the dispute resolution field, with the first symposium for a law audience focused on how hybrid warfare might be more effectively understood, and defended against, through negotiation theories. In the last three-plus years we, along with three colleagues, have enlisted a number of additional colleagues from a variety of fields in a very unusual project-how to engage with a type of conflict often called grey zone conflict (by some people) or hybrid warfare (by others). Our conflict management experts have come from a wide array of disciplines, as well …

Negotiation Theories Engage Hybrid Warfare, Nancy A. Welsh, Sharon Press, Andrea Kupfer Schneider

Cardozo Journal of Conflict Resolution

When Calvin Chrustie and Chris Honeyman first approached the authors of this Article regarding the potential application of negotiation scholars' expertise to the problem of hybrid warfare, our first reaction was confusion. First, what exactly was hybrid warfare? Second, since "war" was in its name, what did our field have to say that could even potentially be useful? This Article, in some sense, is designed to begin to respond to those questions and, hopefully, to encourage other scholars in our field to weigh in with their contributions and criticisms. This Article represents only a start.

Where Is Negotiation In Hybrid Warfare?, Art Hinshaw, Adrian Borbely, Calvin Chrustie

Cardozo Journal of Conflict Resolution

The question of what negotiation has to do with hybrid warfare was the starting point for Project Seshat, a project gathering a global group of academics and practitioners from many walks of life. Their shared interest is in exploring what the fields that fit generally within the concepts of "security" and "dispute resolution" have to offer each other in the context of hybrid warfare grey zone conflict, and how these two "sets" of fields interconnect. In trying to better understand what hybrid warfare is, how it works, and how best to respond to it, negotiation and dispute resolution academics have …

A Theory Of Interests In The Context Of Hybrid Warfare: It's Complex, Cynthia Alkon, Sanda Kaufman

Cardozo Journal of Conflict Resolution

In the 2020 British TV series The Undeclared War, the Russians launch a series of attacks against the United Kingdom that destabilize key sectors in the UK and (spoiler alert) almost end in a full-scale conventional war. In this fictionalized account, the UK only considers fighting back against cyber warfare with cyber warfare. There is no negotiation. Despite knowing who is responsible for these attacks (the Russian government), negotiation is never even considered.

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 …

Lawyering The Presidency, Deborah Pearlstein

Articles

Among its many profound effects on American life, the Trump presidency has triggered a surge of interest in the project of law reform to better check the exercise of presidential power. Yet these reform efforts arise against a wholly unsettled debate about the function and effectiveness of existing checks, perhaps none more so than the role of executive branch legal counsel. With courts often deferential, and Congress hamstrung by partisan polarization, scholars have drawn on the experiences of executive branch lawyers to assess whether counsel functions as part of an “internal separation of powers” form of constraint. Yet while these …

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.

Hostile Shores: Racial Exclusion Laws And The West Coast, Brendan Williams

Cardozo Journal of Equal Rights & Social Justice

The article examines the historical and ongoing racial exclusion laws on the West Coast, focusing on California, Oregon, and Washington. It argues that despite their progressive reputation, these states have a legacy of discriminatory laws targeting Chinese, Black, and Japanese populations, which has led to enduring racial inequities that persist today.

P*Law 2022, Center For Public Service Law

2021–2022 Flyers

This document outlines the full schedule for P*LAW Week 2022 at Cardozo School of Law, presented by the Center for Public Service Law. Held virtually from January 24 to January 27, the week featured panels, workshops, and discussions on key issues in public interest law, including immigration policy, educational equity, criminal justice reform, reproductive rights, data privacy, military law, labor rights, and overdose prevention. Events brought together legal professionals, advocates, scholars, and Cardozo students to explore law’s role in advancing social justice and supporting vulnerable communities.

Twenty-First Annual International Advocate For Peace Award, Honoring William Ury, Samuel Ditchek, Alexandra Sandler, William Ury

Cardozo Journal of Conflict Resolution

On March 11, 2022, the Cardozo Journal of Conflict Resolution presented the twenty-first annual International Advocate for Peace Award to William Ury. The following is a transcript of the event's speeches.

The Global Red Scare And The Anti-Worker Repressive Model, 1913-1927, Christopher M. Roberts

Cardozo International & Comparative Law Review

This article considers the extensive repressive measures enacted around the world during and in the wake of the First World War. While repressive developments in the World War I and post-war periods have previously been examined in different national contexts, little scholarship has adopted a more global lens. To better organize and consider the relevant developments, this article develops a typology of six different categories of public order governance into which the majority of the repressive measures of the period may be classified: the passage of new laws; the development of new institutions; raids, arrests, prosecutions, and other judicial and …

Women's Rights And Customary Justice In Afghanistan: A Review Of Jirgas Under Cedaw's Access To Justice Components, Fernanda Canessa

Cardozo Journal of Conflict Resolution

Afghanistan became the first Muslim country to ratify the Convention on the Elimination of All Forms of Discrimination against Women ("CEDAW") with no reservations, understandings, or declarations ("RUDs") on March 5, 2003. This event is notable considering that the majority of Muslim countries that ratified the treaty included reservations holding Islamic Sharia law above the tenets of the Convention. The government abstained from making this type of reservation, demonstrating its intent to follow international norms as it entered a new phase of democratic statebuilding.

Smoke Without Fire: Employing Mediation To Create Workplace Accommodations For Medical Cannabis Use By Disabled Armed Forces Veterans, Brendan William Potocki

Cardozo Journal of Conflict Resolution

Over the course of a nearly twelve-year career in the Air Force, which included multiple tours of duty in Afghanistan and Iraq, Stephen Otero experienced unspeakable trauma. He has the scars-both visible and invisible-to prove it. Despite being diagnosed with post-traumatic stress disorder ("PTSD") in 2008, Otero once again placed country before self and reaffirmed his commitment to serving the United States by agreeing to complete another tour of duty. During this final deployment, Otero sustained extensive abdominal injuries as a result of a suicide bombing attack.

A Bull In A China Shop: How Cfius Made Tiktok A National Security Problem, Adina Feder

Cardozo International & Comparative Law Review

The note critiques the expansion of the Committee on Foreign Investment in the United States' (CFIUS) mandate under the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA), particularly its inclusion of "sensitive personal data" as a factor in national security reviews. This expansion has led to overly broad and vague definitions, resulting in unnecessary restrictions on foreign direct investment (FDI) without adequately addressing legitimate national security concerns. The note argues that data privacy issues should be addressed through separate federal privacy legislation rather than CFIUS, which is ill-suited to handle such matters. It calls for clearer definitions and a …

The Article Iii Publication Power And The Foreign Intelligence Surveillance Court, John Langford

Cardozo Law Review

The Framers vested “the judicial Power of the United States” in independent courts so that they may protect individual liberty and serve as a check on the legislative and executive branches. The judicial power, however, is narrow and not self-executing. As Chief Justice Marshall put it, it is merely the power “to say what the law is.” Federal courts cannot raise armies or pay money to enforce their decrees. Having neither force nor will, courts must instead rely on cultivating public support to secure the authoritative legitimacy necessary to effectuate their judgments.

But what happens when the executive branch asserts …

From Museum To The Auction Block: Regulating The Deaccessioning Of Art, Jenny Lyubomudrova

Cardozo Law Review

No abstract provided.

Going Rogue: The Supreme Court's Newfound Hostility To Policy-Based Bivens Claims, Joanna C. Schwartz, Alexander A. Reinert, James E. Pfander

Articles

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court held that a proposed Bivens remedy was subject to an exacting special factors analysis when the claim arises in a “new context.” In Ziglar itself, the Court found the context of the plaintiffs’ claims to be “new” because, in the Court’s view, they challenged “large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners.” Bivens claims for damages caused by unconstitutional policies, the Court suggested, were inappropriate.

This Essay critically examines the Ziglar Court’s newfound hostility to policy-based Bivens claims. We show that an …